DEPARTMENT OF LABOR Employment and Training Administration Employment

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					DEPARTMENT OF LABOR

Employment and Training Administration

Employment Standards Administration



20 CFR part 655

29 CFR part 501

29 CFR part 780

29 CFR part 788




RIN 1205-AB55



MODERNIZING THE LABOR CERTIFICATION PROCESS AND ENFORCEMENT

FOR TEMPORARY AGRICULTURAL EMPLOYMENT OF H-2A ALIENS IN THE

UNITED STATES



AGENCY: Employment and Training Administration, and Wage and Hour Division,

Employment Standards Administration, Labor.

ACTION: Proposed rule; request for comments.

SUMMARY: The Department of Labor (the Department or DOL) is proposing to amend its

regulations regarding the certification of temporary employment of nonimmigrant workers

employed in temporary or seasonal agricultural employment and the enforcement of the
contractual obligations applicable to employers of such nonimmigrant workers. This Notice of

Proposed Rulemaking (NPRM or proposed rule) would re-engineer the process by which

employers may obtain a temporary labor certification from the Department for use in petitioning

the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A

(agricultural temporary worker) status. Re-engineering measures focus on the utilization of an

attestation-based application process after an employer conducts pre-filing recruitment. The

Department is also proposing to eliminate the duplication of activities currently performed by the

State Workforce Agencies (SWAs) and the Department.

       The Department is proposing to accompany these changes with increased protections for

workers, including additional and expanded recruiting requirements and greater transparency in

SWA-generated job orders. This proposed rule would also make changes that would enhance the

integrity of the program by introducing audits and simplifying the procedures for penalizing

employers that intentionally fail to meet the requirements of the H-2A program. In concert with

these changes, the Department proposes to amend the regulations at 29 CFR part 501 to provide

for enhanced enforcement, including more rigorous penalties, under the H-2A program to

complement the modernized certification process so that workers are appropriately protected

should an employer fail to meet the requirements of the H-2A program. Finally, changes are

being made to certain definitions in 29 CFR parts 780 and 29 CFR 788 to ensure consistency.

       This proposed re-engineering of the H-2A program would introduce significant

processing efficiencies, thereby enhancing our administration of the program. In addition, this

process seeks to reduce program user uncertainty and delays associated with the current process,

while providing the review necessary to ensure employers seeking H-2A workers do so only for

a true temporary or seasonal need for which no qualified United States (U.S.) workers are




                                                2
available, that U.S. workers are not adversely affected by the hiring of temporary foreign

workers, and that the H-2A workers are themselves provided with enhanced worker protection

measures.

DATE: Interested persons are invited to submit written comments on the proposed rule on or

before [insert date 45 days after publication in the FEDERAL REGISTER].

ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN)

1205–AB55, by any one of the following methods:

   •   Federal e-Rulemaking Portal www.regulations.gov. Follow the Web site instructions for

       submitting comments.

   •   Mail: Please submit all written comments (including disk and CD–ROM submissions) to

       Thomas Dowd, Administrator, Office of Policy Development and Research, Employment

       and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,

       Room N-5641, Washington, DC 20210.

   •   Hand Delivery/Courier: Please submit all comments to Thomas Dowd, Administrator,

       Office of Policy Development and Research, Employment and Training Administration,

       U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington,

       DC 20210.

       Please submit your comments by only one method. The Department will post all

comments received on http://www.regulations.gov without making any change to the comments,

including any personal information provided. The http://www.regulations.gov Web site is the

Federal e-rulemaking portal and all comments posted there are available and accessible to the

public. The Department cautions commenters not to include their personal information such as

Social Security Numbers, personal addresses, telephone numbers, and e-mail addresses in their




                                                3
comments as such submitted information will become viewable by the public via the

http://www.regulations.gov Web site. It is the responsibility of the commenter to safeguard his

or her information. Comments submitted through http://www.regulations.gov will not include

the commenter's e-mail address unless the commenter chooses to include that information as part

of his or her comment.

       Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore,

the Department encourages the public to submit comments via the Web site indicated above.

       Docket: For access to the docket to read background documents or comments received,

go the Federal eRulemaking portal at http://www.regulations.gov. The Department will also

make all the comments it receives available for public inspection during normal business hours at

the ETA Office of Policy Development and Research at the above address. If you need

assistance to review the comments, the Department will provide you with appropriate aids such

as readers or print magnifiers. The Department will make copies of the rule available, upon

request, in large print and as electronic file on computer disk. The Department will consider

providing the proposed rule in other formats upon request. To schedule an appointment to

review the comments and/or obtain the rule in an alternate format, contact the Office of Policy

Development and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-

889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 CFR

part 655, contact Sherril Hurd, Acting Team Leader, Regulations Unit, Employment and

Training, Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW.,

Room N-5641, Washington, DC 20210; Telephone (202) 693-3700 (this is not a toll-free




                                                4
number). Individuals with hearing or speech impairments may access the telephone number

above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

For further information regarding 29 CFR parts 501, 780 and 788, contact James Kessler, Farm

Labor Team Leader, Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210;

Telephone (202) 693-0070 (this is not a toll-free number). Individuals with hearing or speech

impairments may access the telephone number above via TTY by calling the toll-free Federal

Information Relay Service at 1-800-877-8339.



SUPPLEMENTARY INFORMATION:

I.     Revisions to 20 CFR Part 655 Subpart B

A.     Background

1.     Statutory Standard and Current Department of Labor Regulations

       The H-2A worker visa program provides a means for U.S. agricultural employers to

employ foreign workers on a temporary basis to perform agricultural labor or services when U.S.

labor is in short supply. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act

(INA or the Act) defines an H-2A worker as a nonimmigrant admitted to the U.S. on a temporary

or seasonal basis to perform agricultural labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a), see

also 8 U.S.C. 1184(c)(1) and 1188. Although foreign agricultural labor has contributed to the

growth and success of America’s agricultural sector since the 19th century, the modern-day

agricultural worker visa program originated with the creation, in the Immigration and Nationality

Act of 1952, of the “H-2 program” – a reference to the INA section that established it. The H-2




                                                 5
program established mechanisms for the use of temporary foreign labor but did not distinguish

between agricultural and other types of work.

       More than 30 years later, the Immigration Reform and Control Act of 1986 (IRCA)

amended the INA to establish a separate H-2A visa classification for agricultural labor under

INA Section 101(a)(15)(H)(ii)(A). Pub.L. 99-603, Title III, 100 Stat. 3359, November 6, 1986.

Today, the H-2A nonimmigrant visa program authorizes the Secretary of Homeland Security to

permit employers to hire foreign workers to come temporarily to the U.S. and perform

agricultural services or labor of a seasonal or temporary nature, if such employment is first

certified by the Secretary of Labor (the Secretary).

       Section 214(c)(1) of the INA, as amended, requires the Secretary of Homeland Security

to consult with appropriate agencies of the Government – in particular, DOL – before approving

a petition from an employer for employment of H-2A nonimmigrant agricultural workers. 8

U.S.C. 1184(c)(1). Section 218 of the Act, together with section 214, establishes the statutory

structure for the program and provides that a petition to import H-2A workers may not be

approved unless the petitioner has applied to the Secretary of Labor for a certification. Section

218 sets out the explicit obligation for the Department to certify that:

        (A) There are not sufficient U.S. workers who are able, willing, and qualified, and who
       will be available at the time and place needed to perform the labor or services involved in
       the petition; and

       (B) The employment of the alien in such labor or services will not adversely affect the
       wages and working conditions of workers in the United States similarly employed.

8 U.S.C. 1188(a)(1).

       The INA specifies conditions under which the Secretary must deny certification, and

establishes specific timeframes within which employers must file – and the Department must

process and either reject or certify – applications for H-2A labor certification. In addition, the



                                                  6
statute institutes certain employment-related protections, including workers’ compensation

insurance, recruitment, and housing, to which H-2A employers must adhere. 8 U.S.C. 1188(c).

The H-2A program does not limit the number of aliens who may be accorded H-2A status each

year or the number of labor certification applications the Department may process.

       The Department has published regulations at 20 CFR part 655, subpart B – “Labor

Certification Process for Temporary Agricultural Employment Occupations in the United States

(H-2A Workers),” governing the H-2A labor certification process; and at 29 CFR part 501 to

implement its enforcement responsibilities under the H-2A program. Regulations impacting

employer-provided housing for agricultural workers appear at 20 CFR part 654, subpart E

(Housing for Agricultural Workers), and 29 CFR 1910.42 (standards set by the Occupational

Safety and Health Administration); see also 20 CFR 651.10, and part 653, subparts B and F.

        The INA also sets out the conditions under which a certification may not be granted,

including:

       (1) There is a strike or lockout in the course of a labor dispute which, under the
       regulations, precludes such certification.

       (2)(A) The employer during the previous two-year period employed H-2A
       workers and the Secretary of Labor has determined, after notice and opportunity
       for a hearing, that the employer at any time during that period substantially
       violated a material term or condition of the labor certification with respect to the
       employment of domestic or nonimmigrant workers.

       (B) No employer may be denied certification under subparagraph (A) for more
       than three years for any violation described in such subparagraph.

       (3) The employer has not provided the Secretary with satisfactory assurances that
       if the employment for which the certification is sought is not covered by State
       workers' compensation law, the employer will provide, at no cost to the worker,
       insurance covering injury and disease arising out of and in the course of the
       worker's employment which will provide benefits at least equal to those provided
       under the State workers' compensation law for comparable employment.




                                                 7
       (4) The Secretary determines that the employer has not made positive recruitment
       efforts within a multi-state region of traditional or expected labor supply where
       the Secretary finds that there are a significant number of qualified United States
       workers who, if recruited, would be willing to make themselves available for
       work at the time and place needed. Positive recruitment under this paragraph is in
       addition to, and shall be conducted within the same time period as, the circulation
       through the interstate employment service system of the employer's job offer. The
       obligation to engage in positive recruitment under this paragraph shall terminate
       on the date the H-2A workers depart for the employer's place of employment.

8 U.S.C. 1188(b).

       The statute further sets out strict timelines for the processing of certifications: The

Secretary may not require that an application be filed more than 45 days before the employer’s

date of need, and certification must occur no later than 30 days prior to the date of need,

provided that all the criteria for certification are met. 8 U.S.C. 1188(c). If the application fails to

meet threshold requirements for certification, notice must be provided to the employer within 7

days of the date of filing, and a timely opportunity to cure deficiencies must be provided to the

employer. The Act does not explicitly provide a timeframe for certification in cases where an

application as originally filed failed to meet the criteria for certification and the employer is,

upon the date that is 30 days prior to the date of need, still coordinating with the Department and

making a good faith effort to cure deficiencies.

       The Secretary has delegated her statutory responsibilities under the H-2A program,

through the Assistant Secretary, Employment and Training Administration (ETA), to ETA’s

Office of Foreign Labor Certification (OFLC). Under the current regulations in 20 CFR part

655, subpart B, H-2A labor certification applications are processed concurrently through the

State Workforce Agency (SWA) having jurisdiction over the area of intended employment and

the applicable National Processing Center (NPC) within the OFLC. The SWA and ETA -

through the NPCs - receive the application and review the terms of the job offer concurrently.




                                                   8
       Upon receipt of an employer’s application, the SWA places in its job clearance system a

job order initiating local recruitment, but does not place the job in broader circulation until it

receives additional instructions from ETA. By law, ETA has 7 calendar days from the

employer’s date of filing within which to identify and notify the employer and SWA of

deficiencies in the application and provide the employer an opportunity to submit an amended or

modified application. Alternatively, in that same time period, ETA may accept the application

for processing; acceptance reflects ETA’s initial determination that the benefits, wages, and

working conditions of the employer’s job offer, for which temporary certification of foreign

labor is sought, will not have an adverse effect on similarly employed U.S. workers. ETA then

notifies the employer and SWA of this threshold determination and authorizes the SWA to place

the employer’s job order in intrastate/interstate clearance. See 20 CFR part 653, subpart F.

       The SWA having jurisdiction over the State where the employer’s work site is located is

responsible for processing the employer’s request for H-2A labor certification, overseeing the

recruitment and directing U.S. worker referrals to the employer. The NPC reviews whether the

employers comply with advertising and recruitment requirements, and adjudicates the

application - determining whether to approve or deny certification for some or all of the jobs

requested.

       To obtain a temporary labor certification, the employer must demonstrate that the need

for the services or labor is of a temporary or seasonal nature. The employer must also establish

that the job opportunity for the temporary position is full-time, and, absent extraordinary

circumstances, the period of need is 1 year or less.

       Historically, Departmental review and adjudication of applications took place through

both the SWAs and ETA’s Regional Offices. However, in December 2004, the Department




                                                  9
opened two newNPCs, one located in Atlanta, Georgia, and the other in Chicago, Illinois, to

consolidate processing of permanent and temporary foreign labor certification cases at the

Federal level. In 2005, the Department published a notice in the Federal Register at 70 FR

41430, Jul. 19, 2005, clarifying that employers seeking H-2A certifications (with a few limited

exceptions discussed below) must file two original copies of Form ETA 750, Part A, and Form

ETA 790 directly with the NPC of jurisdiction and, concurrently, a copy with the SWA serving

the area of intended employment. SWAs coordinate all activities regarding the processing of H-

2A applications directly with the appropriate NPC for their jurisdiction, including transmittal to

the NPC of housing inspection results, prevailing wage surveys, prevailing practice surveys, or

any other material bearing on an application. Once the application is reviewed by the SWA and

after the employer conducts its required recruitment, the SWA sends the complete application to

the appropriate NPC. The NPC Certifying Officer (CO), on behalf of the Secretary, reviews the

application for completeness and either certifies the application for temporary employment under

the H-2A program, or denies the certification. Current Department regulations at 20 CFR part

655, subpart B, establish procedures by which an employer may appeal to an administrative law

judge either an initial rejection of an application or a final determination denying the application.

       Employers receiving approved labor certifications attach them in support of their I-129

petitions to DHS for authorization to employ foreign workers in H-2A status. For situations

where prospective H-2A workers are outside of the U.S., the employer forwards the approved

petition notice to its prospective employees who then apply for an H-2A visa at the appropriate

U.S. consulate or port of entry. The Department of State then determines whether to issue visas

to the foreign workers requested under the employer’s petition, who can then be admitted

through the appropriate port of entry. For H-2A workers already legally present in the U.S.,




                                                 10
DHS adjudicates an application to extend or change their current status to H-2A status as part of

the petition approval process.



2.       The Need for a Redesigned System

         Modern agriculture is a tremendous benefit to the U.S. – to its culture, its health, and its

economic prosperity. The value of U.S. agricultural production was estimated to be $276 billion

in 2006.1 Farm and farm-related industries employ an estimated 2.7 million workers every

year.2 This includes both wage earning workers and those working for no wages on family

farms.

         One unfortunate reality of modern American agriculture is that the majority of the foreign

workers assisting with the year’s harvest are undocumented. In fact, the share of the agricultural

workforce that is not work-authorized has increased dramatically in recent years while the

number of U.S. workers engaged in agriculture has dropped steadily.3

         Evidence of a shrinking domestic agricultural workforce is found in the U.S. Department

of Agriculture’s (USDA) Farm Labor Survey, a quarterly survey of employers. Comparing

third-quarter totals over the 10 year period 1998-2007, there were 1,450,000 wage earning

workers on the Nation’s farms and ranches in July 1998 but only 1,205,000 for the same quarter

of 2007, for a decrease of 245,000 workers. The largest decrease occurred between 2005, when

there were 1,344,000 wage earning workers, and 2006, when 1,196,000 were reported.4 The 1

year change between 2005 and 2006 represents an 11 percent decrease. While increases in


1
  Bureau of Economic Analysis, National Income and Product Accounts, Table 7.3.5;
http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=263&FirstYear=2005&LastYear=2006&Freq=Year.
2
   Bureau of Economic Analysis, Regional Economic Accounts, Table SA25N,
http://www.bea.gov/regional/spi/default.cfm?satable=SA25N&series=NAICS
3
  National Agricultural Workers Survey, Public Access Data, Fiscal Years 1989-2006. U.S. Department of Labor, Employment
and Training Administration, Office of Policy Development and Research. http://www.doleta.gov/agworker/naws.cfm.
4
  2006 USDA National Agricultural Survey.


                                                           11
productivity have contributed to an expanding agricultural output with fewer inputs, including

labor, this sudden and dramatic decrease in the supply of workers cannot be entirely attributed to

productivity, and poses severe economic consequences for growers, especially those of

perishable crops. Indeed, the Department’s program experience and survey data have

consistently supported the proposition that the agricultural industry has many more jobs than

available legal workers.

         Recent reports on the state of agriculture in the U.S. confirm the dependence of many

agricultural employers on undocumented workers. The National Agricultural Worker Survey

(NAWS)5 conducted each year by the Department shows that in 1990, 17 percent of agricultural

workers were illegally present in the U.S. By 2006, the number of agriculture workers who self-

identify as being illegal had increased to 53 percent. Some worker advocates have suggested that

the actual number of illegal workers is greater than 70 percent.6

         Data from NAWS further shows that in 2006, 19 percent of all agricultural workers were

first time U.S. farm workers (new farm workers are those who have less than a year of U.S. farm

work experience). Among the new workers, 85 percent were foreign-born; 15 percent were U.S.

citizens. All of the foreign-born new workers were unauthorized (100 percent).

         Authorized workers appear to be leaving farm jobs because of age or opportunities for

more stable and higher paying employment outside of agriculture, and are being replaced almost

exclusively by unauthorized foreign-born workers. In addition, enhanced enforcement of

Federal immigration law appears to have also contributed to a reduction in the availability of

agricultural workers, which has in turn had the unintended consequence of sparking a series of

5
  The National Agricultural Workers Survey (NAWS) is a Department-sponsored employment-based, random survey of the
demographic, employment, and health characteristics of the U.S. crop labor force. The information is obtained directly from farm
workers through face-to-face interviews.
6
  See, e.g., Marcos Camacho, General Counsel , United Farm Workers, Testimony Before the Committee on the Judiciary, U.S.
House of Representatives, May 24, 2007.


                                                              12
agricultural crises across a number of States in the past year. As increased border enforcement

efforts have succeeded in limiting the number of border crossings by illegal workers, U.S.

employers, which all too often relied on such workers in the past, have had an increasingly

difficult time finding enough workers to harvest their crops.

       Numerous reports of shrinking or nonexistent farm seasonal labor, with attendant crop

loss for lack of harvest help, have been prominent in recent months and reflect Department

survey data. See, e.g., “Pickers are Few, and Growers Blame Congress,” The New York Times,

September 22, 2006; “Farmers to Congress: Crops are Rotting,” Austin-American Statesman,

January 10, 2007. As stepped-up enforcement efforts have diminished the availability of

agricultural workers, States and farmers have increasingly resorted to sometimes extreme means

to address the resulting labor shortage. For example, the State of Colorado has initiated the use

of inmate labor on farms where migrant labor was previously used. “Facing Illegal Immigrant

Crackdown, Farms Look to Inmate Labor,” ABC News, July 25, 2007. In addition, an

increasing number of farmers have been investigating alternatives such as raising crops across

the Mexican border to secure needed workers that they cannot legally hire in the U.S. “Short on

Labor, Farmers in U.S. Shift to Mexico,” The New York Times, September 5, 2007.

        This critical need for legal workers in the U.S. agricultural industry has been recognized

by many Members of Congress, including during recent deliberations over immigration reform.

Senator Feinstein highlighted the unique labor needs of agriculture and the importance of foreign

labor in a September 2006 floor statement:

               We have 1 million people who usually work in agriculture. I must tell you they
               are dominantly undocumented. Senator Craig pointed out the reason they are
               undocumented is because American workers will not do the jobs.

               When I started this I did not believe it, so we called all the welfare departments of
               the major agriculture counties in California and asked – can you provide



                                                13
                    agricultural workers? Not one worker came from the people who were on welfare
                    who were willing to do this kind of work. That is because it is difficult work. The
                    Sun is hot. The back has to be strong. You have to be stooped over. It is
                    extraordinarily difficult work.

                    For a State as big as mine, there is an immigrant community which is
                    professionally adept at this kind of work. They can pick, they can sort, they can
                    prune, they can harvest – virtually better than anybody. This is what they do. This
                    is what makes our agricultural community exist.

                    It is very hard for a farmer to hire a documented worker. It is very hard to find
                    that documented worker. So if they are going to produce they have to find the
                    labor somewhere.

                    My State produces one-half of the Nation's fruits, vegetables and nuts. One-half
                    comes from California. We produce 350 different crops. We have an opportunity
                    now, with this bill, to get adequate labor for this harvest season on this border
                    security bill.

                    In my State of California, growers are reporting that their harvesting crews are 10
                    to 20 percent of what they were previously due to two things: stepped up
                    enforcement, a dwindling pool of workers, and the problem that ensues from
                    both.7

           In January 2007, Senator Craig summarized the problem facing U.S. agriculture in this

way:

                    [T]his economic sector, more than any other, has become dependent for its
                    existence on the labor of immigrants who are here without legal documentation.
                    The only program currently in place to respond to a lack of legal domestic
                    agricultural workers, the H-2A guest worker program, is profoundly broken.
                    Outside of H-2A, farm employers have no effective, reliable assurance that their
                    employees are legal.

                    We all want and need a stable, predictable, legal workforce in American
                    agriculture. Willing American workers deserve a system that puts them first in
                    line for available jobs with fair market wages. All workers should receive decent
                    treatment and protection of fundamental legal rights. Consumers deserve a safe,
                    stable, domestic food supply. American citizens and taxpayers deserve secure
                    borders and a government that works.

                    Last year, we saw millions of dollars' worth of produce rot in the fields for lack of
                    workers. We are beginning to hear talk of farms moving out of the country,


7
    152 Cong. Rec. S9773 (2006).


                                                     14
                    moving to the foreign workforce. All Americans face the danger of losing more
                    and more of our safe, domestic food supply to imports.

                    Time is running out for American agriculture, farm workers, and consumers.
                    What was a problem years ago is a crisis today and will be a catastrophe if we do
                    not act immediately.8

           Facing a shortage of available U.S. workers, agricultural employers have been left with

the untenable choice of either (a) attempting to legally employ temporary foreign workers

through an H-2A program that is widely decried as dysfunctional, but risking losing crops if

inefficient program administration results in the workers arriving too late for harvest; (b) using

illegal workers, and incurring the risk that the workers, and consequently the crops, will be lost

to immigration enforcement; or (c) not hiring any workers at all - in effect, ending U.S. farming

operations.

           It is entirely unacceptable, but perhaps unsurprising, that many agricultural employers

have chosen in recent years to take their chances with undocumented workers – if for no other

reason than a lack of viable alternatives. The willingness of agricultural employers to hire illegal

workers has created a continuing economic magnet encouraging illegal workers to enter theU.S.,

resulting in attendant problems for national security and the rule of law, as well as additional

costs associated with an underground economy, crime, and social services.

           This increasing reliance on undocumented workers has left the agricultural workforce

increasingly vulnerable to exploitation because illegal workers fear deportation if they complain

about substandard wages or working conditions. As the U.S. Supreme Court has noted,

“[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions

can seriously depress wage scales and working conditions of citizens and legally admitted

aliens….” Sure-Tan v. NLRB, 467 U.S. 883, 892 (1984)(citing De Canas v. Bica, 424 U.S. 351,


8
    153 Cong. Rec. S441-S442 (2007).


                                                    15
356-57, 96 S.Ct. 933, 936-37 (1976). And it is not only wages that are depressed; as Senator

Kennedy stated in May 2007:

                   [W]e have, unfortunately, employers who are prepared to exploit the current
                   condition of undocumented workers in this country--potentially, close to 12 [and]
                   1/2 million are undocumented. Because they are undocumented, employers can
                   have them in these kinds of conditions. If they don't like it, they tell them they
                   will be reported to the immigration service and be deported. That is what is
                   happening today.

                   I yield to no one in terms of my commitment to working conditions or for fairness
                   and decency in the workplace. That is happening today. The fact that we have
                   those undocumented workers and they are being exploited and paid low wages
                   has what kind of impact in terms of American workers? It depresses their wages.
                   That should not be too hard to grasp. Those are the facts.9

         The U.S. has an estimated 3 million agricultural job opportunities filled by about 1.2

million hired agricultural workers each year.10 As noted above, more than 50 percent and perhaps

in excess of 70 percent of these workers are in the country illegally. This means there are at least

600,000 and perhaps more than 800,000 illegal workers employed on America’s 2 million farms.

         The H-2A program is woefully underutilized by agricultural employers. Unlike other

temporary worker programs with annual visa caps that are routinely reached on the first day on

which visas are available, the H-2A program has no annual limit on the number of visas that can

be issued. Yet despite the vast need for agricultural labor, and the availability of H-2A visas,

only about 7,700 agriculture employers used the H-2A program last year, and only 75,000

workers were hired – less than 6 percent of the hired agricultural workforce. This situation

clearly demonstrates that the vast majority of agricultural employers in the U.S. find the H-2A

program so plagued with problems that they avoid using it altogether. The Department seeks to

remedy this problem and render the H-2A program functional so that if and when agricultural

9
  153 Cong. Rec. S6590 (2007).
10
   Dr. James S. Holt, Testimony Before the Committee on Education and Labor, U.S. House of Representatives June 7, 2007.
http://edworkforce.house.gov/testimony/060707JamesHoltTestimony.pdf.




                                                            16
employers are unable to locate sufficient numbers of U.S. workers, they will turn to the program

to provide them with a fully legal workforce. A functional H-2A program will change the

incentives for agricultural employers, thereby assisting in eradicating the underground economy

created by the widespread use of unauthorized workers and better protecting the wages and

working conditions of U.S. workers who are currently harmed by the employment of workers

illegally present in the U.S.

         On August 10, 2007, the Administration announced a series of actions the Administration

would pursue to address border security and immigration-related processes. As part of that

effort, the President directed the Department to review the H-2A program:

         No sector of the American economy requires a legal flow of foreign workers more
         than agriculture, which has begun to experience severe labor shortages as our
         Southern border has tightened. The President has therefore directed DOL to
         review the regulations implementing the H-2A program and to institute changes
         that will provide farmers with an orderly and timely flow of legal workers, while
         protecting the rights of laborers.11

         Pursuant to this directive, the Department conducted a “top to bottom” review of the H-

2A program, its statutory basis, and current implementing regulations. This analysis identified a

number of practices not required by the statute that have made administration of the program

unwieldy and parts of the program difficult to use, particularly for an industry that needs its

workforce at specific times and cannot afford delays. This NPRM enhances many protections

for workers while seeking to eliminate unnecessarily cumbersome regulatory practices that

interfere with or inhibit use of the program, provide little or no benefit for U.S workers, and

indirectly contribute to the employment of illegal workers.



11
   Fact Sheet: Improving Border Security and Immigration Within Existing Law, Office of the Press Secretary, The White House
(August 10, 2007); see also Statement on Improving Border Security and Immigration Within Existing Law, 43 Weekly Comp.
Pres. Doc. 1067 (Aug. 13, 2007).




                                                            17
       The process for obtaining a temporary labor certification for H-2A nonimmigrant

agricultural temporary workers has been criticized as complicated, time-consuming, and

requiring the considerable expenditure of resources by employers, SWAs, and the Federal

Government. The current requirement that applications for temporary labor certifications be

filed simultaneously at the SWA and the applicable ETA NPC has resulted in burdensome,

costly, and unnecessarily duplicative Government review, with little associated benefit to

workers. In addition, the compressed time frame for supervised recruitment has burdened

employers and made it difficult for U.S. workers to access and pursue these opportunities. The

supervised recruitment requirements and process have also been inconsistently applied, leading

to further administrative burdens for both employers and workers. While the consolidation of

the Regional Office oversight of applications into two NPCs has, to a certain extent, lessened the

administrative burden and made application processing more consistent at the Federal level, it

has not lessened the burden faced by employers, eliminated delays in application processing, or

increased the Department’s ability to ensure worker protections. Consequently, the program

continues to be regarded with trepidation by many agricultural employers who continue to make

the unacceptable choice to employ an undocumented workforce rather than face the program’s

many complexities.



3.     Overview of the Proposed Redesign of the System

       In light of its extensive experience in both the processing of applications and the

enforcement of worker protections, the Department has re-examined its program administration

and is consequently proposing several significant measures to re-engineer the H-2A program

processing. These proposals will simplify the process by which employers obtain a labor




                                                18
certification while maintaining, and even enhancing, the Department’s substantial role in

ensuring that U.S. workers have access to agricultural job opportunities before H-2A workers are

hired. These proposals will also increase employer accountability through newly applied

penalties to further protect against violations of program and worker standards, including

substantially increased civil monetary penalties for non-compliance with program requirements

and enhanced provisions for denying non-compliant employers access to the program.

       The Department expects that the resulting efficiencies in program administration will

significantly encourage increased program participation, resulting in an increased legal farm

worker labor supply with the attendant legal rights and protections for workers. The Department

further expects that U.S. workers will be better protected from adverse effects when they are

competing with workers who are legally present in the U.S. and who are subject to all of the

requirements of the H-2A program. See Sure-Tan v. NLRB, 467 U.S. at 883 (1984).

       The Department is proposing to implement an attestation-based process by which

employers, as part of their application, would attest, under threat of penalties, including perjury

and debarment from the program, they have complied with all applicable program requirements.

In addition, employers would be required to maintain all supporting documentation for their

application for a period of 5 years in order to support the Department’s enforcement of program

requirements. The Department would also institute a new auditing process to verify that

employers have, in fact, met their responsibilities under the H-2A program.

       In the Department’s experience, delays by SWAs in conducting housing inspections have

frequently caused the Department to miss mandatory statutory deadlines for processing H-2A

labor certification applications. By statute, the Department has only 15 days to process H-2A

labor certifications; the Department cannot require that applications be filed more than 45 days




                                                 19
before the first date of need, 8 U.S.C. § 1188(c)(1), and is required to make a determination on

applications no fewer than 30 days before the first date of need, 8 U.S.C. § 1188(c)(3)(A).

Housing determinations are similarly required by statute to be completed no fewer than 30 days

before the first date of need – a mandate designed to ensure that housing inspections do not

interfere with the specified timeframes for certifying labor applications. 8 U.S.C. § 1188(c)(4).

The Department’s program experience indicates, however, that housing inspections are

frequently delayed well past 30 days before the first date of need, causing the Department to

make late certification decisions thus violating the statutory timeframe specified. To bring the

program back into compliance with the law and ensure that determinations are made no fewer

than 30 days prior to the first date of need, the proposed rule would alter the current H-2A

housing inspection procedures by adopting procedures that are currently used to inspect housing

for U.S. workers under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

These procedures are explained in greater detail below.

       Consistent with the Department’s statutory obligations under the INA to process H-2A

applications under strict time constraints, and the experience we have had in not being able on a

regular basis to achieve these obligations with respect to employer-provided housing, it is

necessary in this proposed rule to separate the INA procedure from the procedures for

inspections not under the H-2A program in 20 CFR 654.400 and 654.403. While this INA rule

would apply to H-2A related housing inspections in the future, the housing standards themselves,

that is, 20 CFR 654.404-654.417 and 29 CFR 1910.142, whichever are applicable, continue to

apply to such housing.

        Employer applications would be submitted directly to an NPC, streamlining the intake

process and reducing the time required to render a determination on the application. SWAs




                                                20
would continue to post job orders, circulate them through the Interstate Employment Service

System, and refer potential U.S. workers to employers. SWAs would no longer directly oversee

the employer’s recruitment efforts. Instead, as described above, employers will attest to their

compliance with the program requirements and those attestations will be audited by the

Department to ensure compliance.

        Upon submission of the application, the applicable NPC would review the job offer and

the attestations to ensure compliance with all the criteria for certification relative to the date of

need. As necessary, the NPC may issue a notice of application deficiency to enable the employer

to amend or modify the application or job offer. The employer would also submit a preliminary

recruitment report to the NPC as part of the filing process, documenting its recruitment efforts

(and their outcome) for the period from the initiation of the recruitment efforts to the time of the

submission of the application. In addition, the employer would be required to create and retain a

supplemental written recruitment report for 5 years from the date of certification for use in a

Department audit or other investigation.

        Employers would be required to retain for 5 years all supporting documentation for their

application including documents supporting recruitment efforts, a copy of the housing

certification, any relevant certificate of occupancy used to demonstrate compliance, as well as

any written requests submitted to a SWA or other State agency for preoccupancy inspection of

housing, and any other documentation required to demonstrate compliance with a program

obligation.

        The introduction of audits serves as both a quality control measure and a means of

evaluating applications. Audits would be conducted for quality control and fraud detection

purposes on adjudicated applications as well as randomly-selected applications being processed.




                                                  21
The criteria used for selecting applications for audits would be drawn from the Department’s

program experience and be based in part on information received from the Department’s

Employment Standards Administration (ESA), which is charged with enforcing the provisions of

the H-2A program through its Wage and Hour Division (WHD). During an audit, employers

would be required to provide information supporting the attestations in their application. Failure

to meet the required program standards or to provide information in response to an audit would

result in an adverse finding that could lead to penalties, such as revocation of an approved labor

certification or debarment from the program. These penalties may be in addition to penalties

separately assessed by ESA.

       Finally, the Department’s proposal creates an additional process for penalizing employers

or their attorneys or agents who have failed to perform obligations required under the H-2A

program. The Department will continue to debar employers who have engaged in prohibited

activities or who have failed to comply with the obligations and assurances required by the

program, and we have added a process to revoke an approved labor certification, which may in

turn provide a basis for the DHS to revoke an approved visa petition.

       The re-engineering of the H-2A program to include pre-filing recruitment, submission of

applications directly to an NPC, modernized processing of applications, reduction of duplication

in the application process, and focusing of SWAs on referral of U.S. workers should yield

improvements in the time needed to process labor certification applications and help ensure the

Department meets its obligation to protect U.S. workers and process applications within the

statutory timeframe mandated by Congress.



B. Proposed Redesign to Achieve a Modernized Attestation-Based Program




                                                22
1.     Enhanced Recruitment Requirements

       The recruitment process fulfills the Department’s statutory mandate to certify that there

are not sufficient U.S. workers who are available, able, willing, and qualified to perform the

agricultural labor or services and that the employment of the temporary foreign worker will not

adversely affect the wages and working conditions of similarly employed U.S. workers. 8

U.S.C. 1188(a)(1). The Department currently ensures that these standards are met by requiring a

combination of SWA-supervised recruitment by employers, the posting of job orders in the

Interstate Employment Service System, and the independent contacting of other sources of

potential labor. These activities must take place in a very narrow 15-day window, as under the

statute the Department cannot require that applications be filed more than 45 days prior to date of

need for the worker and the Department must approve or deny labor certifications no later than

30 days before the employer’s date of need.

       The Department is now proposing to require employers to conduct recruitment of U.S.

workers for temporary agricultural job opportunities for a substantially longer period of time

before the job begins by requiring that recruitment be started well in advance of the employer

filing the application. The Department’s experience in other programs, such as its permanent

labor certification program, has demonstrated that recruitment in advance of filing an application

benefits the potential U.S. worker population by providing a maximum opportunity for

consideration of the job opportunity. Employers would continue to engage in so-called “positive

recruitment” and post a job clearance order for both interstate and intrastate clearance with the

SWA having jurisdiction over the place of employment in advance of the application being filed

with the Department. The Department believes that advance recruitment in the H-2A program

would help maximize the ability of employees and organizations representing their interests to




                                                23
identify available jobs with sufficient time to apprise all interested workers of the potential

opportunity well in advance of the job’s start date.

       Under the new recruitment system, which is discussed in more detail below, U.S.

workers’ ability to identify job opportunities would be further enhanced by requiring employers

to place three advertisements, instead of the currently required two, in a newspaper of general

circulation most appropriate for the agricultural occupation and most likely to reach the U.S.

workers who will apply for the job opportunity. In addition, the Department would require that

one of the three newspaper advertisements appear in a Sunday edition. If a newspaper of general

circulation with a Sunday edition is not available (as may be the case in many rural areas where

such jobs are located), the employer would instead use the edition with the widest circulation in

the area of intended employment that is most appropriate to the occupation and most likely to be

read by the U.S. workers most likely to apply for the job opportunity. In addition, if the use of a

professional, trade or ethnic publication is more appropriate to the occupation, and if that

publication is the most likely source to bring responses from qualified and available U.S.

workers, the employer may use such publication instead of a newspaper in place of the two

required daily (but not Sunday) advertisements. This advertising option will allow recruitment

for agricultural jobs to be appropriately tailored in those areas where such jobs are traditionally

advertised in ethnic or trade publications. Employers would also be required to contact former

employees to determine their willingness to accept the employer’s job opportunity.

       In addition to recruiting in the area of intended employment, employers would be

required, based on an annual determination made by the Secretary, to recruit in any State

designated as a State of traditional or expected labor supply for the place the employer’s work is

to be performed. This additional recruitment would consist of a single newspaper advertisement




                                                 24
in the area or areas within the States that are outlined in the Secretary’s designation, and must be

placed at the same time as the three local newspaper advertisements discussed above. SWAs

will also place job orders into those designated states as required.

       As required by the current regulations, all advertising must include all of the details

required in the job offer, including the name and geographic location of the employer. If the

employer is an association, the advertisement may, as is current practice, list only the name of

the association, but the Department proposes to require that the advertisement inform the reader

that the SWA will have on file and will make available upon request the name and location of

every member of the association seeking workers through the advertisement. Ads must identify

in all cases the wage being offered. In the event an association is serving as the employer and

the wage is a range throughout the area of intended employment, the range of wages must be

included in the advertisement, and the advertisement must indicate that the SWA will have on

file, and will make available upon request, the wage rate applicable to each member of the

association. These requirements will help ensure that potential applicants are afforded the

opportunity to make fully informed decisions about job opportunities.

       Employers would begin advertising job opportunities no earlier than 120 calendar days

and no later than 75 calendar days before the date on which the foreign worker would begin

work (i.e., the date of need). This will permit sufficient time for an advertisement to be placed

and responded to by potential U.S. workers most likely to apply for the job opportunities, and for

workers who apply to be evaluated by the employer before the H-2A application is filed. The

Department believes that the expanded recruitment window appropriately balances the need to

maximize the notice of available job opportunities to U.S. workers with the need to ensure that




                                                 25
recruitment is not conducted so far in advance of the growing season that employers do not yet

know when or how many workers will be needed.

       Employers filing the labor certification applications would be required to attest under

penalty of perjury that (1) they did, in fact, attempt to recruit U.S. workers in the manner

prescribed by the regulations, and (2) any potentially qualified U.S. workers that applied were

rejected for lawful, job-related reasons. Employers would submit with their application a

preliminary recruitment report, documenting their efforts to date in attempting to find eligible

U.S. workers, including the outcome of the evaluation of U.S. worker applicants. Employers

would also be required to prepare a supplemental report after filing that documents subsequent

recruitment efforts and the results, including results from SWA recruitment and referrals, to be

retained with the other documentation supporting the application.

       The proposed rule expands the period in which the employer must conduct recruitment

and consider potential U.S. workers, so that U.S. workers will be given notice well in advance of

the actual openings. To account for the fact that the date and extent of need is always flexible in

the agriculture industry, the Department has retained current provisions permitting employers to

reasonably adjust the numbers of workers needed without engaging in additional recruitment.

       The INA also requires employers to engage in recruitment through the Employment

Service SWA job clearance system. See 8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49 et seq., and

20 CFR part 653, subpart F. The proposed recruitment model requires employers to submit job

orders to the SWA having jurisdiction over the area of intended employment. When the job

order is for a work opportunity in more than one State, the SWA to which the job order is

submitted will in turn forward the job order to all States listed in the application as anticipated

worksites. In circumstances where the employer’s anticipated worksite location(s) is contained




                                                 26
within the jurisdiction of a single State, the SWA must, to maximize the recruitment of eligible

U.S. workers, transmit a copy of its job order to no fewer than three States, which must include

any State designated by the Secretary as a State of traditional or expected labor supply for the

area of intended employment. This recruitment takes place in tandem with the employer’s own

recruitment within a multi-state region of traditional labor or expected labor supply, as discussed

above. INA § 218(b)(4).

       The Department is proposing that SWA job orders also be posted until the time the H-2A

worker departs for the place of employment (or 3 days prior to the start date of the employment,

whichever is later). Because referrals of U.S. workers resulting from newspaper advertisements

and intrastate/interstate job orders will all come from the SWA, this proposal will better

synchronize efforts to recruit U.S. workers and ensure that such efforts operate in parallel.

       Employers should retain several types of documents reflecting their compliance with the

with the program’s recruitment requirements. Documentation relating to newspaper

advertisements will be satisfied by copies of pages from the newspapers (or other publication) in

which the job opportunity appeared. Documentation of a SWA job order will be satisfied by

maintaining copies of the job order printed from the SWA’s Internet job listing Website on the

first day of posting, a copy of the job order provided by the SWA with the start date of posting,

or other proof of publication from the SWA containing the text of the job order on the first day

of posting. Contact with previous employees, another required positive recruitment element, will

be documented by maintaining copies of correspondence with such employees (or records of

attempts to contact former employees). Such documentation should also contain a description of

the outcome of those contacts, including the lawful, job-related reasons for not rehiring a former

employee. In sum, these proposed changes in the recruitment process will increase the




                                                 27
likelihood that U.S. workers will receive advance notice of available job opportunities, as well as

provide them with additional information on available positions. In addition, the proposed

changes will help avoid recruitment-related processing delays.



2.     Use of Attestations of Compliance with Assurances and Obligations

       The Department is proposing to require employers to submit their application directly to

the NPC having jurisdiction over the employer’s place of employment. The application under

the re-engineered process will differ not only in the manner of its submission, but also in its

form. Based on the Department’s experience administering the attestation-based Permanent

Labor Certification (PERM) program, the Department is proposing instituting an application

would require employers to attest to their adherence to the articulated obligations under the H-2A

program. An employer would be required to attest, under penalty of perjury, that it will abide by

all of the obligations imposed on employers under the statutory and regulatory framework. The

employer would have to attest, for example, that it has begun to conduct and either completed or

will complete the required recruitment (and document the recruitment efforts). The employer

would also have to attest that it has provided or secured required housing and, where applicable,

applied to the SWA and requested or received a satisfactory inspection. The employer would

also need to attest its compliance with securing workers’ compensation insurance; the so-called

“three-fourths guarantee;” and the provision of tools and transportation. In addition, the

employer would have to attest that it is in compliance with and will continue to comply with all

applicable Federal, State and local employment-related laws. In short, all of the obligations of

employers to comply with H-2A program requirements would continue and would be

documented through these formal attestations.




                                                 28
       As part of the application process, employers would attest that they have conducted

expanded recruitment in advance of filing an application with the Department. Employers would

attest to their compliance with the required elements of the H-2A job offer, including offering the

applicable legally required wage, which would be obtained in advance through a request to the

NPC. Employers would attest that they have provided the obligatory workers compensation

insurance and met the required working conditions. Employers would further attest to their

adherence to requirements regarding the recruitment of qualified U.S. workers through both their

own positive recruitment efforts and by requesting the posting of job orders through SWAs, as

well as confirming that any U.S. workers who have applied or been referred and were not hired

were rejected only for lawful, job-related reasons.

       Employers would attest to having obtained worker housing comporting with all

applicable safety and health standards. Employers would identify the housing to be provided by

location and, if public or rental accommodation, by name, and attest that the housing meets the

applicable standards. And, if the housing is of a sort that must by statute be inspected, the

employer would attest that such housing has either satisfactorily passed a preoccupancy SWA

inspection, or that the employer has made a timely request for such an inspection that has not

occurred through no fault of the employer. As part of its recruitment prior to filing its

application, the employer would be required to place a job order with the appropriate SWA,

which would in turn post it through the interstate/intrastate job clearance system.

       The Department anticipates the shift to an attestation-based process with pre-filing

recruitment would help to bring the program into compliance with longstanding statutorily

required processing timelines and better harmonize the program with the unique needs of the

agricultural sector, thereby enabling more employers to utilize the program and better protecting




                                                 29
U.S. workers from the adverse effects resulting from the employment of illegal workers.

Employers would still be required to comply with all the requirements and obligations of the

program, and indeed penalties for noncompliance would increase. Employers would retain

supporting documentation evidencing their compliance with the program requirements, while the

Department would retain for itself the right to request such documentation to ensure program

integrity.

        The revised attestation process will dramatically reduce the number of incomplete

applications that currently consume valuable processing time only to then have to be returned to

the applicant for the inclusion of missing information. The majority of the information on the

application form would consist of attestations that will elicit information similar to that required

by the current H-2A labor certification process reflecting that the employer has performed the

necessary activities to establish eligibility for certification. These proposed attestations lend

themselves to a more efficient processing of applications.

        The Department anticipates that, with an expected increase in use of the program, it will

see a marked increase in participants unfamiliar with the obligations that are integral to the H-2A

program. The movement to an attestation system would be accompanied by outreach to potential

users as well as those currently utilizing the program. Such education efforts will of necessity

focus on employers’ obligations and the mechanisms by which compliance will be judged. The

Department invites comment on a timeline for its anticipated training and educational outreach

initiatives.



3.      Form Submission




                                                 30
       The Department proposes initially to require employers to submit applications on paper,

through an information collection form that will be modified significantly from the current form

to reflect an attestation-based process. The use of a redesigned form would provide the

necessary assurances of an expeditious paper application review process. The Department

ultimately envisions implementing an electronic submission system similar to that employed in

other programs administered by the Department’s OFLC, such as the electronic submission

system in the PERM program.

       The Department is proposing to eventually require electronic submission in explicit

recognition of the fact that such a process will significantly further improve the application

process. An electronic submission process will also improve the collection of key program data

and better allow the Department to anticipate trends, investigate areas of concern, and focus on

areas of needed program improvement. Improved data collection will also enable the

Department to capture information regarding noncompliance and potential fraud that may lead to

future administrative, civil, or criminal enforcement actions against unscrupulous or non-

performing employers.

       The Department recognizes that H-2A employers may be concerned about their ability to

comply with the application requirements through use of an Internet-based submission process

and is accordingly not requiring it at this time. The Department is committed to reviewing its

ability to transition the H-2A filing process to such a method and is reviewing specifically its

ability to provide, based upon its previous experience, user-friendly electronic registration and

filing processes that would enable use by any employer with computer and Internet access. The

Department’s experience with agricultural employers in other contexts (program requirements

under the Migrant and Seasonal Agricultural Worker Protection Act, for example) support its




                                                 31
determination that such access is common enough among agricultural employers to justify

eventually requiring its use in this context. The Department invites comments, in particular from

H-2A employers, on the concept of an electronic filing process.



4.     Elimination of Unnecessary Duplication in the SWAs’ Role

       The Department’s focus on providing employers a more efficient process has taken into

consideration the total time an employer must spend before all Federal agencies to obtain

permission to employ an H-2A worker and ensure that workers are available when needed.

Employers must by statute apply to DOL, DHS and DOS to obtain H-2A workers. Reducing the

time it takes an employer to secure H-2A workers after filing their application, and after their

unsuccessful search for U.S. workers, is critical to the program’s success given the time sensitive

nature of many agricultural employers’ labor needs.

       Congress has signaled its awareness of the incredible importance to the agricultural sector

of timely application processing by building tight mandatory timeframes into the statutes

governing the H-2A program. For example, the Secretary is required to make certification

decisions “not later than 30 days before the date such labor or services are first required to be

performed,” 8 U.S.C. 1188(c)(3)(A), and SWAs are required to complete housing inspections by

that date as well, 8 U.S.C. 1188(c)(4). Actual practice has shown, however, that the procedures

established by the current regulations are cumbersome, slow, unwieldy, and have resulted in both

SWAs and the Department regularly failing to meet the required statutory timeframes.

       Consequently, the Department’s efforts have focused on how to develop a smoother and

more expeditious H-2A process while ensuring protections for workers. Among our proposals in

this rulemaking is the elimination of duplicate filing of applications with the SWA and the




                                                 32
Department’s NPC. By focusing the SWAs’ role in the initial stages of the application process

(placing job orders, managing referrals of eligible U.S. workers, and conducting housing

inspections), the Department can more effectively oversee the adjudication and consistent

processing of all applications. As a result of this modernized application review procedure, the

Department can reduce and equalize the average processing time of applications regardless of the

area of the country where the application originated.

       We expect that the time savings gained by using a more efficient labor certification

process will reduce the total time an employer spends obtaining permission from the Federal

Government to employ an H-2A worker and getting that worker from his or her country of origin

to the place of employment. Moreover, the Department’s consolidation of the review of

applications in its NPCs will permit greater consistency of adjudication. Two centers, as

opposed to the fifty State agencies, will be charged with all major aspects of application

adjudication, ensuring consistency in the application of program requirements and policy.

Indeed, the Department is considering consolidating all H-2A applications into one NPC rather

than two, to further enhance consistency of adjudication and processing.

       The SWA will continue to play its traditional role in the recruitment process by posting

and processing an appropriate job order to notify available and qualified U.S. workers of the

opportunity. The employer would need to contact the SWA to initiate placement of the job

order, rather than relying on the SWA to place it in the course of processing the H-2A

application, as is the case now. The job order would be required to provide the same information

as the newspaper advertisements contemplated by this proposal. This is an expansion of the

information previously required to be included with the job order, and will significantly enhance

the transparency of the recruitment process for prospective workers. Employers whose




                                                33
applications involve worksites in multiple SWA jurisdictions would place the job order with the

SWA in which the majority of the proposed work assignment will take place. The SWA will

arrange to have it posted with other SWAs, as appropriate.

       To strengthen the integrity of the Secretary’s determination of whether there are available

U.S. workers for the position, and to help build employers’ confidence in their local SWAs and

the H-2A program, the proposed rule at § 655.102(j) clarifies the SWAs’ obligation to verify the

employment eligibility of prospective U.S. workers before referring them to an employer under a

job order in support of a H-2A application. The failure of many SWAs to verify the employment

eligibility of referred workers, despite existing statutory requirements that only eligible workers

be counted as valid referrals and existing regulatory requirements that no ineligible workers be

referred, has created a situation in which it is all too easy for illegal workers, rather than U.S.

workers, to be referred to employers. For many years, agricultural employers have complained

to this Department that SWA-referred workers are often undocumented, generating substantial

additional legal risks and administrative burdens for employers. Collectively, agricultural

employers appear to have little confidence in their local employment service or the H-2A

program, and consequently rarely utilize either.


       The INA provisions governing admission of foreign workers under the H-2A program

make employment eligibility of U.S. workers a core element of a worker’s “availability;” a U.S.

worker has long been characterized as being “available” for employment when authorized to

legally undertake that employment. An employer will not be penalized for turning away

applicants who are not authorized to work, and referred workers who are refused employment on

the basis of not having work authorization will not be counted as available for purposes of H-2A

labor certification. By statute, the Secretary must certify the job opportunity if the employer: (1)



                                                   34
“Has complied with the criteria for certification (including criteria for the recruitment of eligible

individuals as prescribed by the Secretary),” and (2) “does not actually have, or has not been

provided with referrals of, qualified eligible individuals who have indicated their availability to

perform such labor or services on the terms and conditions of a job offer which meets the

requirements of the Secretary.” 8 U.S.C. 1188(c)(3)(A)(emphasis added); see also definition of

“agricultural worker,” 20 CFR 651.10 (applicable to referrals under the Employment Service

System regulations at 20 CFR parts 651-658). For purposes of employment, the INA defines an

“eligible individual” as one “who is not an unauthorized alien … with respect to that

employment.” 8 U.S.C. 1188(i)(1).


       SWAs receiving ETA Alien Labor Certification (ALC) grant funding to support H-2A

activities are required to verify the employment eligibility of applicants seeking referral under an

job order in support of an H-2A application pursuant to current regulations and agency guidance;

this proposed regulation provides additional clarification of this requirement. The Department

notes that DHS regulations at 8 CFR 274a.6 provide additional verification authority and

procedures for SWAs. To confirm its continued eligibility to receive ALC grant funding, each

State agency will be asked to submit proof of these procedures to the Department prior to the

beginning of the 2009 fiscal year (FY). In the event a SWA refers a worker who is not eligible,

current H-2A employer responsibilities will not change; an employer is not required to hire such

worker and can include ineligibility as a reason for rejection in its recruitment report.


       We strongly caution that the SWA’s responsibility to perform threshold, pre-referral

verification exists separate from each employer’s independent obligation under Immigration

Reform Control Act of 1986 (IRCA) to verify the employment eligibility of every worker to

whom it has extended a job offer. The INA does provide, however, that employers who accept


                                                 35
referrals from SWAs that verify employment eligibility in compliance with the DHS process and

provide referred employees with appropriate documentation certifying that verification has taken

place are entitled to “safe harbor” in the event it is later discovered a referred worker was not

authorized to work in the U.S. 8 U.S.C. 1324a(a)(5). To simplify the recruiting process and

avoid unnecessary duplication of functions, SWAs are directed to provide all referred employees

with adequate documentation that verification of their employment eligibility has taken place.

Employers can rely on INA § 274A(a)(5) only where the documentation complies with all

statutory and regulatory requirements, including 8 CFR 274a.6. SWAs are strongly encouraged

to provide this documentation to employers. The Department is not insensitive to the resource

and time constraints facing SWAs in their administration of H-2A program requirements and the

difficulties inherent in making informed referrals from a population of workers that is frequently

itinerant and often difficult to contact. However, we do not believe that this requirement has

resulted or will result in a significant workload increase or administrative burden. Further, the

mechanisms available for verification, including the E-Verify Web-based system operated by

DHS, allow SWA staff to perform this function relatively quickly after training.


       E-Verify is a program administered by the United States Citizenship and Immigration

Services (USCIS) within DHS. E-Verify electronically confirms a person’s employment

eligibility after the Employment Eligibility Verification Form (Form I-9) has been completed.

SWAs that choose to use E-Verify refer a job seeker to an H-2A-related job opportunity only

after completing a Form I-9 and submitting the required information via E-Verify. The SWA

will be required to follow the terms and conditions in the Memorandum of Understanding that

must be signed by the SWA and USCIS in order to gain access to E-Verify. The SWA may not

refuse to make a referral and the employer may not refuse to accept a referral because of an E-



                                                 36
Verify tentative nonconfirmation (TNC), unless the job seeker decides not to contest the TNC.

SWAs and employers may not take any adverse action, such as delaying a referral or start date,

against a job seeker or referred worker based on the fact that E-Verify may not have yet

generated a final confirmation of employment eligibility. The SWA will be required to advise

the employer when E-Verify generates a final confirmation or nonconfirmation.


       The requirement that SWAs verify employment eligibility prior to referral is designed to

strengthen the integrity of the temporary labor certification process, afford employers a legal

pool of U.S. worker applicants, and improve confidence in and use of the H-2A labor

certification program.


5.     Retention of Supporting Documentation.

       Employers would be required to retain the documentation outlined in the proposed

regulations in hard copy for 5years from the date of adjudication, and to provide all

documentation to demonstrate compliance with the requirements of the program in response to

an audit or other investigative matter, whether conducted by the Department or another Federal

agency, such as DHS. As described above, the documents to be retained include proof of

recruitment efforts, including advertising, contact made with applicants and former employees,

and a written recruitment report with results of efforts and reasons for not hiring U.S. workers.

       Finally, the Department recognizes that there is always a risk that less-than-scrupulous H-

2A program participants will try to secure workers through fraud or misrepresentation. Long-

standing practice and coordination with SWAs in the H-2A program, as well as experience with

the attestation-based PERM system, have provided us substantial insight regarding the

mechanisms by which employers may seek to take advantage of the re-engineered attestation-

based system. The Department proposes to employ various measures to address potential fraud


                                                37
or abuse in the attestation-based process and the H-2A program generally. These will include

audits, a combination of increased deterrent penalties, including fines, revocation of approved

applications, and debarment from future participation in the H-2A program, all of which are

discussed below, as well as other mechanisms for detecting fraud. In addition, employers and

their agents and attorneys are reminded that submission of any materially false, fictitious, or

fraudulent statements to any Federal Government agency constitutes a criminal violation (18

U.S.C. 1001 and 1546), subjecting anyone convicted of a violation to fines and/or imprisonment

for not more than 5 years.



C.     Maintaining and Enhancing Program Integrity

       The shift to an attestation-based temporary H-2A agricultural labor certification system

will be accompanied by the Department’s vigorous enforcement of employer obligations under

this program. Consequently, the Department is proposing certain actions in this rulemaking,

consistent with its statutory authority, to examine and enforce compliance with the enumerated

obligations and responsibilities of employers that seek approval of labor certifications pursuant

to the H-2A program.



1.     Prohibition on Cost-Shifting

       Under proposed new § 655.105(n), an employer must attest that it has not shifted and will

not shift to the H-2A worker the costs of preparing or filing the application, including the costs

of recruitment or attorneys’ fees, and that it has not utilized a foreign recruiter without

contractually prohibiting that foreign recruiter from passing on such costs. The recruitment,

legal, and other costs associated with filing a temporary labor certification application are




                                                  38
business expenses necessary for, or in the case of legal fees, desired by, the employer to

complete the labor market test and to prepare and submit the labor certification application. The

employer’s responsibility to pay the costs of preparing an application exists separate and apart

from any potential benefit that may accrue to the foreign worker as a result of the employer filing

the application. Prohibiting the employer, including a Farm Labor Contractor (FLC), from

passing these costs on to its H-2A worker(s) allows the Department to better protect the integrity

of the process, as well as protect the wages of the H-2A worker from deterioration by

disallowable deductions. Disallowable deductions taken from an H-2A worker’s wages cause

those workers to be paid less than the required wage, which results in an adverse effect on U.S.

workers.



2.     The Use of Audits

       Pursuant to proposed new § 655.112, after a labor certification application has been

adjudicated, the Department would, based upon various selection criteria, identify certain

applications for audit review. Investigations performed by the Department’s WHD and the

Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment

Practices (OSC) would provide another potential source of information triggering audits. In

addition, some applications would be randomly selected for audit as part of the Department’s

quality control processes. This authority would enable the Department to perform its directed

and random audits on any application that has been adjudicated, regardless of whether the

application was approved or denied.

       If an application is selected for an audit, the employer will be notified in writing of the

selection. The employer would then be required to submit, within 30 days, the documentation




                                                 39
specified in the audit request to verify the information stated in or attested to on the selected

application. Upon timely receipt of an employer's audit documentation, and after any further

investigation that may be warranted, the audit information would be reviewed by the

Department’s Certifying Officer (CO). The Department would then determine whether the

employer complied with its obligations and would notify the employer in writing of its findings.

       The Department will take firm action when it discovers non-compliance by employers.

The Department is invoking all available statutory authorities to bolster its enforcement

capabilities. If, at the conclusion of an audit, there is evidence of non-compliance with required

attestations and/or other program requirements, or if an employer refuses to participate in the

audit process, the proposed rule would enable the CO to order a variety of remedies. The CO

may initiate debarment proceedings against the employer, agent and/or attorney in order to

prohibit participation in the H-2A program for a period of up to 3 years at the Department’s

discretion and depending on the nature and severity of the violations. If the audit reveals that

employer’s documentation is incomplete, is inconsistent with the employer’s statements and/or

attestations contained in the application, or if the application and supporting documentation is

otherwise deficient in some material respect, the employer may, in addition to debarment, also

experience revocation of the approved H-2A certification, as described below. The proposed

rule also adds a provision explaining that the Department of Justice’s OSC will refer to the CO

pertinent information gained in the course of OSC’s investigations. Likewise, the proposed rule

would require the Department and Department-funded entities to share pertinent information

with OSC.




                                                  40
3.     Revocation of Existing Labor Certifications

       Section 218(e)(1) of the INA authorizes the Department to revoke a temporary

agricultural labor certification in appropriate instances. When the Department initiated

rulemaking in 1987 to implement IRCA, it considered implementing this provision, but

determined that the SWA’s supervision of the employer’s activities during the labor certification

application process, together with WHD’s post-certification enforcement role, vitiated the need

for such a sanction. 52 FR 20524, 20525, Jun. 1, 1987.

       Along with the modernized approach to the application and certification processes

proposed in this rule, we also include proposed measures, consistent with the provisions of INA

§ 218(e)(1), to ensure compliance. This includes the possibility of revocation of an approved

certification if it is subsequently determined that an employer has not complied with a material

term or condition of the certification, or upon recommendation of WHD for egregious program

violations or interference with or failure to cooperate with an investigation. DHS, in a separate

rulemaking, is proposing to revoke approved visa petitions that were approved on the basis of the

revoked H-2A labor certifications.



4.     Debarment

       Proposed § 655.118 seeks to modernize and enhance the statutory process relating to the

debarment of employers who substantially violate the terms of a labor certification. Over the

past two decades, effective policing of the program has been hampered by an unnecessarily

narrow definition of employer actions warranting debarment. In particular, the current regulation

does not authorize debarment for actions that occurred during the recruitment process, including

the rejection of domestic workers for other than lawful job-related reasons. Under the proposed




                                                41
rule, however, where certification would be granted based on employer attestations that

recruitment of U.S. workers was unsuccessful, the availability of debarment as a sanction would

be a powerful tool to encourage compliance.

       Accordingly, if the OFLC Administrator finds that an employer or an employer’s agent or

attorney has misrepresented a material fact or made fraudulent statements in its attestations,

materially failed to comply with the terms of the attestations, or committed an act(s) of

commission or omission that reflects a willful failure to comply with an obligation, attestation or

other activity listed in proposed § 656.118, the OFLC Administrator may order debarment of the

employer, agent and/or attorney from the H-2A program for a period of up to 3 years. In

addition, other Federal agencies will be notified, as appropriate, of the audit findings.

       The current regulation provides debarment authority solely to ETA and requires the

WHD to report findings of violations to ETA and make recommendations to deny future

certifications. Under the proposal, debarment authority for issues identified by WHD

investigations would reside with the Wage and Hour Administrator, while debarment authority

for violations of program requirements committed during the application and attestation process

would remain with ETA. This change will allow administrative hearings and appeals for civil

money penalties assessed by the WHD to be consolidated with debarment actions arising from

the same facts. It will also eliminate the need for ETA to review Wage and Hour investigations,

allowing for more expeditious proceedings and efficient enforcement.



D.     Other Significant Changes

1.     Wages and the Adverse Effect Wage Rate (AEWR)




                                                 42
         Section 218(a)(1)(B) of the INA requires as a condition for approval of H-2A petitions

that the Secretary has certified that “the employment of the alien in such labor or services will

not adversely affect the wages and working conditions of workers in the United States similarly

employed.” To ensure that the wages of similarly employed U.S. workers are not adversely

affected, agricultural employers wishing to utilize the H-2A program have traditionally been

required to offer and pay their covered U.S. workers and H-2A workers the higher of the

applicable hourly “Adverse Effect Wage Rate” (AEWR), as determined by the Federal

government; the applicable prevailing wage, as determined by the States; or the Federal or State

statutory minimum wage.

         Over the last 20 years, it has become clear that perhaps the biggest threat to the wages

and working conditions of U.S. workers is direct competition from a large undocumented

workforce that is often underpaid and taken advantage of yet is afraid to assert its rights.

Senators from both political parties remarked upon this phenomenon during the recent

immigration debates in Congress,12 and the U.S. Supreme Court has also noted the threat that

undocumented workers pose to the wages and working conditions of U.S. workers. See Sure-

Tan v. NLRB, 467 U.S. 883, 892 (1984).

         Thus, based on data collected during more than 20 years of experience in administering

the H-2A program, the Department has concluded that one of the most significant actions it can

take to protect the wages and working conditions of U.S. workers is to render the H-2A program

sufficiently functional such that, rather than resorting to the employment of workers illegally

present in the U.S. to make up for shortages in the number of U.S. workers who are willing and




12
  See e.g.,152 Cong. Rec. S9773 (2006) (statement of Senator Diane Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of
Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of Senator Edward Kennedy).


                                                            43
available to perform agricultural work, agricultural employers will instead use the H-2A

program, with all of its accompanying legal requirements and protections.

       One of the most important things the Department must do to ensure that the H-2A

program is fully functional and protective of the wages and working conditions of U.S. workers

is to set AEWRs that appropriately reflect market realities and labor costs. Two decades of

experience with the H-2A program have shown that, in light of the prevailing conditions in the

agricultural labor market, an AEWR that is set too low or too high is likely to harm U.S.

workers. It is no secret that foreign workers may be willing to work for wages that are lower,

and often substantially lower, than wages that are typically paid to U.S. workers. Allowing

foreign workers to work at substandard wages would likely harm U.S. agricultural workers by

causing them to be displaced or by forcing them to accept substandard wages in order to compete

with the foreign workers. Direct harm effects of a too-low AEWR may also include increased

levels of unemployment among U.S. workers. Indirect effects of a too-low AEWR could include

worsening working conditions.

       Conversely, an AEWR that is artificially set too high can also result in harm to U.S.

workers. If the AEWR is set so high that it is seen as not reflective of actual market conditions,

agricultural employers may hire undocumented foreign workers instead of participating in the H-

2A program, and the resulting influx of undocumented foreign workers erodes the earnings and

employment opportunities of U.S. workers in agricultural occupations. U.S. workers cannot

fairly compete against undocumented workers, who may accept work at below-market wages,

and who are also cheaper to employ than H-2A workers because they do not require the

additional payment of other H-2A program requirements, including transportation, and housing.

Although the threat of legal sanctions and attendant risks of work disruption will constrain some




                                                44
employers from employing undocumented workers, the greater the total cost to employers of the

AEWR plus all other attendant H-2A program costs as compared to the market rate for labor, the

greater the likelihood is that employers will risk hiring undocumented foreign labor.

            Indeed, according to the USDA, there are an estimated 1.2 million hired agriculture

workers in the United States. Recent survey data from the Department indicate that more than

50 percent of agriculture workers in the U.S. admit to being here illegally, and some farm

worker advocacy groups have estimated that 70 percent of the agricultural labor force is

undocumented.13 That means there are currently more than 600,000 and perhaps more than

800,000 illegal agricultural workers on U.S. farms, a strong indication of the failures of the

current system.

            These system failures have contributed to the large number of undocumented workers in

agricultural positions in the U.S., which has in turn adversely impacted U.S. workers by eroding

agricultural employment opportunities and wages. The effect on U.S. workers of an AEWR that

is set too high is ultimately similar to the effect of an AEWR that is set too low: Loss of family

income, increased duration of job searches, and increased levels of unemployment. The

undocumented workers whose hiring is incentivized when AEWRs are artificially set too high

lack the legally enforced protections and benefits that the H-2A program provides, further

threatening to degrade U.S. workers’ working conditions.

            The Supreme Court expressly recognized in its decision in Sure-Tan, 467 U.S. at 892,

that “acceptance by illegal aliens of jobs on substandard terms as to wages and working

conditions can seriously depress wage scales and working conditions of citizens and legally

admitted aliens….” This is still the case today. As Senator Kennedy stated in May 2007,



13
     See Julia Preston, “Farmers Call Crackdown on Illegal Workers Unfair,” The New York Times, August 11, 2007.


                                                              45
           We have, unfortunately, employers who are prepared to exploit the current
           condition of undocumented workers in this country--potentially, close to 12 [and]
           1/2 million are undocumented. Because they are undocumented, employers can
           have them in these kinds of conditions. If they don't like it, they tell them they
           will be reported to the immigration service and be deported. That is what is
           happening today.”14

           Because illegal aliens may be willing to work for substandard wages, may be reluctant to

report violations of the labor and employment laws, and in some instances may even accept

illegally low wages that are paid off the books, the prevalence of illegal aliens in the agricultural

sector today represents a substantial threat to the wages and working conditions of U.S. workers.

           As noted above, there is demand for hundreds of thousands of agricultural workers

beyond what the domestic labor market is able to supply. Replacing the hundreds of thousands

of undocumented agricultural workers currently employed in the U.S. with U.S. workers or with

H-2A program workers paid at a legally required wage that will not undermine agricultural

wages will substantially counteract these adverse effects.

           Wages vary across the U.S. by geographic location, by specific agricultural occupation,

and by level of skill. An AEWR that does not take into account these variables will inevitably

disrupt program functionality and adversely affect U.S. workers. For example, a single national

AEWR applicable to all agricultural jobs in all geographic locations would prove to be below

market rates in some areas and above market rates in other areas, resulting in all of the associated

adverse effects that have been previously discussed. AEWRs covering large multi-state regions

suffer from similar flaws. In an agricultural sector where prevailing labor conditions make the

need for precision in AEWR determinations paramount, it is essential that a methodology be

adopted that allows for as great a degree of geographic refinement as possible.




14
     153 Cong. Rec. S6590 (2007).


                                                   46
       It is therefore critical that the AEWR be accurate and reflect market conditions for each

locality across the country. If the AEWR does not reflect market wages and is too low or too

high in any given area, it will harm U.S. workers directly by artificially lowering wages or it will

harm U.S. workers indirectly by providing an incentive for employers to hire undocumented

workers. Improving the geographic precision of the AEWR is essential to ensuring that the

AEWR meets its statutory objective.

       Another important element in determining an appropriate AEWR that reflects market

realities and labor costs is including wage data relating to the specific occupation and level of

skill or experience required for a position. Farm labor comprises a number of occupations and

skills, and both the demand for and supply of farm workers with a particular skill level or

experience varies significantly across geographic areas. The farm labor market is not a

monolithic entity, but rather is a matrix of markets across a spectrum of occupations, skill or

experience levels, and local areas. Effectively protecting U.S. workers from unfair foreign

competition by setting an AEWR that is neither too low nor too high requires that the AEWR be

specifically applicable to the labor market affected in terms of specific occupation, skill or

experience, and geographic location.

       The present AEWR calculation method is based on a 1989 final rule, 29 CFR part 655,

that calculates regional AEWRs based on the previous year’s annual combined average hourly

wage rate for field and livestock workers in each of 15 multi-state regions and 3 stand-alone

States, as compiled by the USDA quarterly Farm Labor Survey Reports. In 1989, the

Department determined that the USDA survey was the best available “barometer” for measuring

farm wages on a nationwide basis. In the succeeding years, however, the Department has gained

vast knowledge and experience in applying wage data that simply did not exist in 1989.




                                                 47
       The Department’s reliance on USDA Farm Labor Survey data creates several problems

for functional program administration. The USDA quarterly Farm Labor Survey does not

provide refined data by skill level or experience, occupations, or geographic locales of workers

typically sought by agriculture employers in the H-2A program. The USDA Farm Labor Survey

population includes not only the lower-skilled crop field workers typically sought by agriculture

employers who turn to the H-2A program for labor resources, but also inspectors, animal

breeding technicians, and trained animal handlers – all occupations that provide a poor basis for

determining H-2A wages because they are rarely, if ever, filled by H-2A workers. Additionally,

the USDA Farm Labor Survey does not account at all for different skill levels required by

agriculture occupations.

       The accuracy of AEWRs based on the USDA Farm Labor Survey is further diminished

because the Farm Labor Survey is not based on reported hourly wage rates. Instead, USDA’s

Farm Labor Survey asks employers to report total gross wages and total hours worked for all

hired workers for the two reference weeks of the survey. Based on this limited information, the

survey constructs annual average wages for the broad general categories of field workers and

livestock workers. The AEWR is then calculated by combining the average of the annual wage

for field workers and the average annual wage for livestock workers into one annual wage rate

covering both of those general occupational categories. The survey thus determines the hourly

AEWR based not on reported hourly wages, but rather on the basis of the numerator (total gross

wages for the combined occupations) and denominator (total hours for the combined

occupations) derived from the information supplied by employers.

       In addition, the Farm Labor Survey estimates hired labor use and costs at the aggregation

of 15 multi-state regions (along with 3 stand-alone states). The aggregation of a widely diverse




                                                48
national agricultural landscape into just 15 regions (and 3 stand-alone states) results in extremely

broad generalizations that fail to account for specific market conditions at the local level. Wage

data collected at each individual State and even substate level would be more appropriate for

purposes of computing an accurate, sub-regional AEWR that reflects local market conditions.

Indeed, market-based wage survey data at the state or substate level is the standard for

calculating comparison wages in other temporary worker programs administered by the

Department, including the H-2B program that is the non-agricultural counterpart of H-2A and the

H-1B specialty occupation worker program.15

        Moreover, the USDA Farm Labor Survey is administered and funded through USDA,

giving the Department no direct control over its design and implementation. USDA could

terminate the survey at any time and leave the Department without the basic data, problematic as

it is, used to calculate the AEWR. In fact, just this past year, USDA announced that it would

suspend the survey in February 2007 due to budget constraints. Ultimately, USDA resumed the

Survey in May 2007. The possibility that USDA may suspend the survey at some point in the

future adds a measure of instability and uncertainty for AEWR determinations in future years.

        Therefore, this NPRM proposes to institute an alternative methodology for determining

the AEWR that will more accurately measure market-based wages by occupation, skill level, and

geographic location. A more accurate and refined AEWR methodology will produce an AEWR

that more closely approximates actual market conditions, which will, in turn, help protect the

wages and working conditions of U.S. workers.

        The Department invites comment on an alternative AEWR methodology that achieves the

goals described above. Under this proposed rule, the Department suggests a revised AEWR


15
   Calculation of the applicable wage by a SWA using the OES survey is, in fact, a “safe harbor” providing
presumption of correctness in the H-1B labor condition application. 20 CFR 655.730.(a)(2)(ii)(A)(3).


                                                        49
methodology that would achieve those goals by utilizing the Bureau of Labor Statistics (BLS)

Occupational Employment Survey (OES) data instead of USDA Farm Labor Survey data. The

OES program in BLS collects data on wage and salary workers and produces employment and

wage estimates for about 800 occupations covering over 70 percent of the employment in the

U.S. See 67 FR at 30479, May 6, 2002.

       The wage component of the OES survey is, with the exception of the Decennial Census,

the most comprehensive survey conducted by any agency of the Federal Government. The OES

program surveys approximately 200,000 establishments every 6 months, and over 3 years

collects the full sample of 1.2 million establishments. The OES program collects occupational

employment and wage data in every State in the U.S. and the data are published annually. The

OES wage data is already utilized by the Department for determining comparison wages in other

temporary worker programs and has proven to be an accurate and successful wage reference. In

1989, when the Department established the current AEWR methodology, the OES program was

not well developed and thus was not an effective alternative for the USDA Labor Survey. In the

intervening 18 years the OES program has surpassed the USDA Labor Survey as a source for

comprehensive agricultural wage data in several respects.

       First, the OES program produces occupational estimates by geographic area and by

industry. Estimates based on geographic areas are available at the national, State, and

metropolitan area levels. Industry estimates are available for over 450 industry classifications at

the national level. The industry classifications correspond to the sector, 3, 4, and 5-digit North

American Industry Classification System (NAICS) industrial groups.

       Second, the OES program provides data at the substate level in addition to the State level.

Data is compiled for each metropolitan statistical area (MSA) and for additional non-MSA areas




                                                 50
that completely cover the balance of each State. Data is available for 573 distinct areas

comprehensively covering theU.S. This level of detail will enable AEWRs to be defined for H-

2A applicant occupations that are specific to a relevant substate labor market area, greatly

improving the ability of the Department to tailor certification decisions and parameters to

relevant local labor market conditions. By contrast, the current AEWR provides wage data for

just 15 multi-state regions and 3 stand-alone States across the U.S.

        Another advantage of OES is that it offers the ability to establish four wage level

benchmarks commonly associated with the concepts of experience, skill, responsibility, and

difficulty variations within each occupation. The four skill levels for each occupation afford the

employer and the Department the opportunity to more closely associate the level of skill required

for the job opportunity to the relevant OES occupational category and skill level. This is another

important advantage over the USDA Farm Labor Survey, which makes absolutely no skill

distinctions.

        There are five OES categories of occupations that would most likely be identified with H-

2A job classifications. The Department expects that the “farm workers and laborers, crop,

nursery and greenhouse” occupational category would encompass the majority of the jobs that

employers would seek to fill under the H-2A program. The survey does, however, contain other

categories, such as “sorters and graders” and “farmworkers, farm and ranch animals,” that will

enable employers and the Department to more closely match the job opportunity to the relevant

OES job category and, in turn, the appropriate AEWR. This is a significant advantage over the

USDA Farm Labor Survey, which awkwardly provides just a single wage that purports to cover

the entire spectrum of agricultural occupations.




                                                   51
       Importantly, the OES survey is conducted by the Department’s Bureau of Labor

Statistics, which will enable continuity and coordination between those who gather the wage data

and those who utilize it. This will help ensure the data needs of the H-2A program and AEWR

calculation are consistently met.

       The Department recognizes that the proposed new methodology utilizing the OES survey

data to determine the AEWR is subject to some limitations. For example, the OES survey

presently determines agricultural wages by surveying establishments that provide support

activities for crop production, such as farm labor contractors, who provide workers and laborers

to farm owners and operators. The survey does not include farm establishments that are directly

engaged in the business of crop production. Nonetheless, the survey is broad enough to provide

accurate and statistically valid wage rates: The latest OES data covers agricultural

establishments accounting for the employment of 451,770 hired agricultural workers of all types

or more than one-third of the 1.2 million hired farm workers in the U.S., according to the USDA.

Moreover, employees of farm labor contractors and other similar businesses generally perform

the same type of work as H-2A workers, and thus provide a good general basis for wage

comparison. In the Department’s estimation, taking these factors into account, the OES survey

data is substantially more complete, detailed, and accurate – considering geography, occupation,

and skill level – than is the USDA Farm Labor Survey.

       The Department’s examination of data from the Census Bureau’s Current Population

Survey (CPS), which includes agricultural workers from both farm and nonfarm establishments,

confirms that the OES data covering wages paid by nonfarm agricultural establishments provides

an effective and appropriate proxy for the wages paid directly to workers by farm operators. The

CPS, a monthly survey of 60,000 households, collects information on the employment and




                                                52
unemployment experience of workers in the U.S. Estimates based on CPS data for 2006 show

little difference in the mean or median earnings of agricultural workers employed by farm

establishments and those employed by nonfarm establishments (the establishments within the

scope of OES).16 Agricultural workers in nonfarm establishments had mean hourly earnings of

$8.86 and median hourly earnings were $8.20. In the farm establishments, mean hourly earnings

were $8.55 and median hourly earnings were $7.80. Because of the small size of the CPS survey,

the difference in wages reported by agricultural workers in farm establishments and nonfarm

establishments is not statistically significant. Comparable OES estimates place mean hourly

earnings at $8.94 for agricultural workers in nonfarm establishments and are very similar to the

CPS estimate of $8.86.17


          In looking at the CPS as a possible source of wage data for this purpose, the Department

determined that while that survey may provide a reasonable basis for making national level

estimates and comparisons, the sample size is too small to provide the type of detailed State and

substate-level estimates that can be gleaned from the OES data. And for that reason, the

Department determined that the CPS program would not be able to provide sufficiently accurate

comprehensive data on agricultural wages to compute a precise and reliable AEWR.

          The Department is aware that shifting from regional AEWRs derived from USDA Farm

Labor Survey data to more geographically and occupationally refined AEWRs derived from OES

data may raise the legally required wage rates in some areas while lowering them in others.

16
   As noted above, although an OES-surveyed employer may technically be a nonfarm establishment, the employer’s workers
may work on farms in agricultural occupations as reflected in the OES agricultural worker categories.
17
   The CPS estimates were for miscellaneous agricultural workers (occupation code 45-2090). The OES estimates were done for
four more specific occupations: agricultural equipment operators (occupation code 45-2091); farmworkers and laborers, crop,
nursery, and greenhouse (45-2092); farmworkers, farm and ranch animals (45-2093); and agricultural workers, all other (45-
2099). Average hourly earnings for these four occupations ranged from $8.48 to $12.05 (See
www.bls.gov/oes/current/oes_nat.htm#b45-0000.) and the weighed average across the four occupations was $8.94. Median
hourly earnings range from $7.95 to $10.80. The vast majority of the workers in these occupations are in the “farmworkers and
laborers, crop, nursery, and greenhouse” category, which has median earnings of $7.95, and so it is likely that the median across
all four occupational categories differs little from $7.95 or from the CPS estimate of $7.80.


                                                               53
Although these changes in wage rates presumably will make local AEWRs more reflective of

actual local labor market conditions, the Department proposes, and asks for comment on, adding

an additional protection for workers against potential short-term wage reductions resulting from

the change in AEWR methodology. To counteract potential wage reductions in some areas, the

Department proposes to use the future (effective July 24, 2009) Fair Labor Standards Act

(FLSA) minimum wage of $7.25 as the floor for any AEWR, regardless of the methodology

ultimately selected for calculating the AEWR. This basic wage floor will provide a fundamental

protection to both foreign temporary workers and U.S. workers that will ensure that AEWRs

cannot be lower than new federal minimum wage even though that wage will not be legally

required until 2009.

         An additional frame of reference on appropriate wage rates is the proposed “AgJOBS”

legislation, which has been widely endorsed by groups representing both agricultural businesses

and agricultural workers. 18 Many AgJOBS provisions implicate important Governmental

interests that may not have been adequately taken into account when business and worker groups

worked out their proposed compromise legislation, but the wage provisions are at the heart of the

direct economic interests of both groups, and the bargain they have struck with respect to wages

presumably reflects a comfortable middle ground from their point of view. At a minimum, the

Department believes that the many worker advocacy groups and congressional sponsors who


18
   The Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS) builds upon years of discussion and ideas from
growers, farm worker advocates, and various groups and organizations, including several Latino groups, focused on the issue of
immigration.” Senator Larry Craig, AgJOBS Issue Briefing, http://craig.senate.gov/~craig/i_agjobs.cfm #faq. Myriad advocacy
groups have supported the AgJOBS legislation, including for example, the United Farm Workers, Farmworker Justice, National
Council of LaRaza, AFL-CIO, Change to Win, Farm Labor Organizing Committee, Int’l Brotherhood of Teamsters, Laborers’
Int’l Union of North America, Service Employees Int’l Union, United Food and Commercial Workers, UNITE HERE, National
Council of Agricultural Employers, American Farm Bureau Federation, Western Growers Assn, Florida Fruit and Vegetable
Assn, Agricultural Coalition for Immigration Reform, U.S. Chamber of Commerce, National Cattlemen’s Beef Assn, American
Nursery and Landscape Assn, United Egg Producers, United Fresh Fruit and Vegetable Assn, and New England Apple Council.
See letter signed by more than 850 organizations supporting AgJOBS legislation that was sent to every member of the U.S.
Senate, available at
http://fj.nclr.org/Public/webpage/October2007edits/InformationAboutAgJOBS/110thAgJOBSsignonApril2007Final.pdf.


                                                              54
have endorsed the legislation would never agree to wage rates that they believe would hurt the

interests of U.S. workers.

       As a comparison of the OES hourly wage rate at the national average or median rates for

the occupational category “Farmworkers and Laborers, Crop, Nursery and Greenhouse” and the

national average for the AEWR included in the “AgJOBS” legislation shows that on average,

these workers would receive higher wages if paid an AEWR based on the OES data ($8.39)

rather than the AEWR prescribed in AgJOBS ($7.50), thus demonstrating that use of the OES

data provides additional wage protection to similarly employed U.S. workers. Even at the 25th

percentile OES wage rate, workers in several States will receive higher AEWR wages on average

than the AEWR rates proposed in AgJOBS. Further, when considering the proposed addition of

the 2009 FLSA minimum wage floor to the OES data, that average AEWR turns out to be almost

exactly the same as the average AEWR prescribed in AgJOBS.

       Even in those instances where the use of OES data may result in lower AEWRs for H-2A

workers in the short term, the Department is confident that the wages and working conditions of

U.S. workers will be protected because the total costs of hiring H-2A workers are higher than the

hourly AEWR alone reflects, and employers focus not only on wages when making hiring

decisions, but on a workers’ total cost. The program requirement that employers pay for H-2A

workers’ transportation and lodging, as well as the administrative expense of filing H-2A

applications with several different Government agencies, add substantial additional costs to the

employment of H-2A workers. The additional costs beyond wages (administrative expense,

transportation and lodging) associated with utilization of foreign labor under the H-2A program

are an important consideration that provides significant protection for U.S. workers. It is

expected that U.S. workers in similar occupations, with similar skills and working in the same




                                                55
locality would likely be able to command higher hourly wages than H-2A workers and at least

equivalent benefits because the additional cost considerations associated with utilization of the

H-2A program provide an economic incentive for employers to seek out and hire U.S. workers

instead of H-2A workers.19 And of course, U.S. workers also have the protection of the rule

requiring agricultural employers to first attempt to recruit U.S. workers before they can employ

H-2A workers. This proposed rule also includes added protection for U.S. workers by requiring

employers to recruit U.S. workers for an expanded period of time.

         In conclusion, the Department seeks comment on alternative methodologies for

calculating AEWRs for the H-2A program, including the use of OES data. The Department

believes that to achieve a more accurate AEWR, the proposed methodology must include data

concerning occupational category, skill level, and geographical distinctions, at a state or substate

level. The Department’s proposals have been made after careful consideration of the statutory

requirements of the program and with the full knowledge of the administrative record developed

in earlier rulemaking activities regarding AEWRs, as published in the Federal Register. The

Department has reviewed the current methodology in light of the limitations of the USDA data

sources, as well as improvements in alternative data collection instruments. The Department

invites specific comments on the current AEWR methodology as well as its proposals to improve

it, including reasonable alternatives that both provide adequate protections for U.S. workers and

avoid introducing undesirable inflexibilities in agricultural labor markets.


         2.        The 50 Percent Rule




19
  U.S. workers hired in response to recruitment required by the H-2A program are entitled to at least the same benefits received
as those received by H-2A workers.


                                                               56
       The 50 percent rule, which requires employers of H-2A workers to hire any qualified

U.S. worker who applies to the employer during the first 50 percent of the period of the H-2A

work contract, was originally created by regulation as part of the predecessor H-2 agricultural

worker program in 1978. 20 CFR 655.203(e); 43 FR 10316, Mar. 10, 1978. In 1986, IRCA

added the 50 percent rule to the INA as a temporary 3 year statutory requirement, pending the

findings of a study that the Department was required to conduct “and other relevant materials

including evidence of benefits to U.S. workers and costs to employers addressing the advisability

of continuing a policy which requires an employer as a condition for certification under this

section, to continue to accept qualified, eligible U.S. workers for employment after the date the

H-2A workers depart for work with the employer.” Id.; Pub. L. 99-603. In the absence of the

enactment of Federal legislation prior to the end of the 3 year period, the Secretary was

instructed to immediately publish the findings and promulgate an interim or final regulation

based on the findings.

       The Secretary hired a research firm to analyze the cost-benefit impact of the 50 percent

rule on U.S. workers, growers, and the general public. The research firm studied the impact of

the 50 percent rule in just Virginia and Idaho, the two States that were determined to have had

the highest number of 50 percent rule workers. The number of growers interviewed was small,

as the firm interviewed only those growers that actually hired U.S. workers because of the 50

percent rule - just 66 growers (0.1 percent) in all of Virginia and Idaho’s total 64,346 farms

(according to the USDA). The study did not take into consideration the 131 growers in the two

States who received referrals under the 50 percent rule but did not hire any of the referred

workers. The study also did not investigate why so few growers were using the H-2A program,

and therefore did not take into account the overwhelming number of growers who were not using




                                                57
the program. The study sought only to determine the costs to employers that hire referred 50

percent rule workers and the concomitant benefits to the U.S. workers hired under the rule.

       Even with this narrow focus, the study made it clear that the H-2A program was not

regarded as desirable by growers. Of those questioned, 6 percent said they were dropping out of

the H-2A program because of the 50 percent rule. Forty percent wanted the rule eliminated

entirely and 33 percent wanted to alter the requirement by, for example, requiring the 50 percent

rule workers to finish the season or modifying substantially the 50 percent rule by requiring the

hiring of U.S. workers only up to a certain point before the date of need. In fact, 16 years later,

only one of the agriculture employers surveyed in 1990 is still using the H-2A program.

       In 1990, pursuant to what is now INA § 218(c)(3)(B)(iii), ETA published an interim final

rule to continue the 50 percent requirement. 55 FR 29356, Jul. 19, 1990. Since the 1990

publication of the interim final rule continuing the 50 percent rule, the Department has gained

experience and additional perspective that calls into question whether the Department’s decision

to continue the 50 percent rule was, at the time, supported by the data in the 1990 study; and

whether the rule is in fact a necessary, efficient and effective means of protecting U.S. workers

from the adverse impact resulting from the employment of foreign workers, No other temporary

foreign labor program administered by the Department includes such a requirement, which may

be yet another reason the H-2A program is viewed by many as containing burdensome

requirements that do not provide a corresponding benefit to U.S. workers.

       The Department has heard complaints that the 50 percent rule creates substantial

uncertainty for the employer in terms of managing their labor supply and labor costs during the

life of the contract. In many situations, it appears the employer does not substitute the U.S.

worker arriving under the 50 percent rule for the existing H-2A worker, but rather retains both




                                                 58
workers and incurs the added expense in order to prevent further disruption to work flow

resulting from dismissing an H-2A worker and sending that worker home. Anecdotally,

employers report that the majority of the U.S. workers who are hired under the 50 percent rule

remain on the job for less than the term of the H-2A contract. This means that if an employer

immediately dismisses an H-2A worker when a U.S. worker is hired under the 50 percent rule,

that action could result in the employer being short of labor if and when the U.S. worker leaves

the job early. In any case, the concern that new workers may arrive well into the harvest cycle

and create the type of disruption described above can serve as a serious disincentive for

employers to participate in the H-2A program. Given the ready availability of jobs in the

agricultural sector to authorized workers, there is also reason to believe that U.S. workers would

generally be best served by referrals to jobs that have not yet begun, rather than being thrust into

job opportunities that have already partly elapsed.

       With the newly redesigned process being proposed, employers will be required to

conduct additional recruitment in advance of their application. Employers will begin advertising

for job opportunities no earlier than 120 days and no later than 75 days before the date on which

the foreign worker will begin. This is a significant expansion of the period of required

recruitment in the current rule and would enable more U.S. workers to be apprised of the job

opportunities in a timely manner before the job begins. Additionally, under the redesigned

process, the SWA will post the job orders until the date of departure of the foreign workers for

the place of employment. These expanded time frames for recruitment will ensure that U.S.

workers have substantially better and more effective notice about opportunities to obtain full

term employment than is currently afforded by the 50 percent rule. Substituting these expanded

recruitment requirements for the current 50 percent rule would provide employers substantially




                                                 59
greater certainty regarding required recruitment, expected labor costs, and the available

workforce, and would help lend greater stability to a program that has been rendered unattractive

to many agricultural employers because of the many administratively imposed uncertainties.

       For the above reasons, the Department is inclined to replace the 50 percent rule with

expanded up-front recruitment requirements that will enhance the ability of U.S. workers to

identify and apply for agricultural job openings before the jobs begin. The Department would

like more information about the impact of the 50 percent rule before it makes a final decision,

however, and requests comment on and information regarding the costs and benefits of the 50

percent rule in the current labor market. The Department requests comments from employers,

workers and their representatives on the merits of retaining or eliminating the rule, as well as

possible alternatives, such as reducing the applicable time period for mandatory hiring to the first

25 percent of the H-2A worker’s contract, that might be effective in protecting U.S. worker

access to job opportunities without creating uncertainty and competitive disadvantage for

employers.



3.     Housing

       Section 218(c)(4) of the INA requires employers to provide housing in accordance with

specific regulations. Employer-provided housing, depending on when it was built, must meet

either the Department’s Occupational Safety and Health Administration (OSHA) standards set

forth under 29 CFR 1910.142 (standards for temporary labor camps), or the ETA standards at 20

CFR 654.404-654.417 (standards for H-2A housing). In circumstances where rental, public

accommodation, or another substantially similar class of habitation is used, the housing must

first meet any local standards for such housing or, in the absence of applicable local standards,




                                                 60
any applicable State standards. In the absence of both local and State standards, the housing

must meet the OSHA standards for temporary labor camps.

       The Department is proposing to require that employers attest to having secured the

necessary housing and having requested or obtained the necessary inspection. The requirement

that housing be inspected in a timely fashion is often problematic for SWAs, whose staff must

travel to the site of the housing, sometimes over great distances to remote areas; perform the

inspection; and issue a final determination, all within the current 15-day processing window (i.e.,

between 45 days and 30 days prior to the date of need). The Department is accordingly

proposing that employers who have commenced recruitment request a housing inspection no

earlier than 75 days and no later than 60 days before the date of need, well in advance of the

statutory deadline requiring the Department to issue a labor certification determination no later

than 30 days before the date of need.

       The Department is not proposing to alter the discretion currently afforded to SWAs in the

method by which inspections are conducted. The ability to perform inspections earlier than the

date of filing will, however, provide SWAs with more time and more flexibility in executing this

charge. This change is essential to address the frequent failure of SWAs to comply with the

statutory mandate that housing inspections be completed “prior to the date … by which the

Secretary of Labor is required to make a certification,” INA § 218(d), which has in turn resulted

in labor certifications being issued outside of the statutorily required timeframes. Absent an

expansion in the timeframe for inspections, the expected increase in program participation would

likely lead to ever greater strains on the resources of SWAs to keep up with requested

inspections, and ever greater delays beyond the legally required deadline for completion of

inspections.




                                                61
       To ensure efficient and legally sufficient processing of applications, the Department is

proposing to use the same basic model that applies to housing inspections for U.S. workers under

the Migrant and Seasonal Workers Protection Act (MSPA). Employers would be required to

request housing inspections no later than 60 days prior to the anticipated date of need. If an

employer has not received or does not receive a housing inspection prior to the statutory deadline

of 30 days prior to date of need, and the SWA failed to conduct the inspection for reasons

beyond the employer’s control, the Department will make a conditional determination on the

application in the absence of a physical inspection. This conditional determination would only

be granted in situations in which an employer has made a timely request and housing has not

been inspected; employers who have been informed of deficiencies by SWAs and have failed to

act to correct these deficiencies will not be conditionally certified, nor will those who have made

untimely requests or who have not otherwise met all other criteria for certification. Moreover,

the issuance of a conditional determination would not in any way prevent SWAs from later

conducting housing inspections and ensuring that appropriate penalties are imposed if housing

fails to meet standards. This proposed system closely parallels MSPA and ensures that foreign

workers receive every protection to which U.S. workers are entitled while avoiding punishing

employers for the Government’s failure to meet its statutory deadlines with respect to housing.

       The Department appreciates the obstacles faced by employers when looking to build

housing for farm workers, including zoning restrictions, resistance from the community, cost and

the Federal housing standards to which the housing must be built. Therefore, the Department is

proposing to allow H-2A employers to provide a housing voucher as an additional option by

which H-2A certified employers may meet the requirement to provide housing to H-2A and U.S.

workers who are not reasonably able to return to their residences within the same day.




                                                62
       To ensure that workers receive the benefit to which they are entitled, the Department has

proposed a number of safeguards when housing is provided via the voucher method. These

safeguards include the requirement that the voucher method may not be used in an area where

the Governor of the State has certified that there is inadequate housing available in the area of

intended employment for farm workers; the voucher is not transferable and is not redeemable for

cash by the employee, it may only be redeemed for cash paid by the employer to a party

providing appropriate housing; and the voucher may not be used to secure housing located

outside the reasonable commuting distance of the place of employment. Workers may “pool”

the housing vouchers to secure housing (e.g., to secure a house instead of a motel room), but

such pooling may not result in a violation of the applicable safety and health standards. The

proposed voucher is one way an employer may meet his obligation to provide housing.

However, if acceptable housing cannot be obtained via the voucher, the employer is not relieved

of his obligation to provide housing meeting the applicable safety and health standards and must

either provide or secure housing for the H-2A workers. The Department invites comments on

whether this proposal appropriately balances the needs of employers and workers.

       In addition, the Department proposes to clarify and codify additional limited flexibility in

the matter of post-certification changes in housing. Currently, under policy clarified by the

Training and Employment Guidance Letter 11-07, Change 1 (November 14, 2007) if the

employer-provided housing becomes unexpectedly unavailable, an employer is required to (1)

notify the SWA in writing of the housing change, and (2) provide to the SWA evidence from the

appropriate local or State agency responsible for determining compliance with the applicable

safety and health standards and licensing such rental or public accommodations, which may

include a certificate of occupancy where such a certificate demonstrates current compliance with




                                                 63
applicable safety and health standards. This NPRM further clarifies and codifies this policy.

Only if the employer takes these steps will a housing certification continue to be considered

valid. The SWA may then, in its discretion, inspect the housing to ensure that it complies with

the applicable safety and health standards. The SWA shall notify the appropriate CO of all

housing changes and of the results of any housing inspections. This process will enable

employers to avoid the delays associated with amending certifications and beginning the process

anew when previously arranged and inspected housing becomes unavailable or uninhabitable for

reasons outside their control (i.e. fire, natural disaster).



4.      Transportation

        The NPRM at § 655.104(h) proposes to continue the Department’s policy of requiring

employers to provide or pay for the worker's daily subsistence and transportation from the

worker's home or place of employment, provided the worker works for 50 percent or more of the

contract period. This proposal also retains the requirement that employers advance

transportation and subsistence costs (or otherwise provide them) if it is the prevailing practice of

non-H-2A agricultural employers in the occupation in the area to do so. The Department

recognizes, however, that these requirements are unique to the H-2A program, and invites

comments providing information on the costs and benefits to employers and workers of

continuing to require employers to pay for the inbound and outbound transportation and

subsistence costs of H-2A workers.



5. Treatment of Logging




                                                    64
       The Department has long held logging employment to the same or similar standards as

those found in the H-2A regulations, even though logging has not been included in the statutory

definitions of agricultural employment. In 1978, the Department included logging in its final H-

2 regulations for temporary labor certifications for “agricultural and logging workers”,

encompassing most of the same obligations found today in the current H-2A program. 43 FR

10306 Mar.10, 1978. This continued a Departmental policy going back to 1965. See 20 CFR

602.10 and 602.10a (1971), 35 FR 12393, Aug. 4, 1970; 20 CFR 602.10 (1966), 30 FR 12292,

Sept. 25, 1965.

       In 1986, when IRCA separated the H-2 visa category into agricultural work under the H-

2A visa and nonagricultural work under the H-2B visa, Congress provided the Secretary explicit

authority in administering the H-2A program to expand the definition of “agriculture” through

regulation beyond IRCA’s required minimum definition, which includes all agricultural labor as

defined in the Federal Insurance Contributions Act (FICA) (the social security tax in section

3121(g) of the Internal Revenue Code) and in § 3(f) of the FLSA. IRCA § 301(a), Pub.L. 99-

603, Title III, 100 Stat. 3359, November 6, 1986. The Department chose at that time not to

expand the definition of agriculture beyond the statutory minimum. Nevertheless, the

Department simultaneously continued the existing regulatory H-2A-like standards for logging

workers who were admitted under the H-2B program. Those pre-IRCA standards for agricultural

and logging applications continue to apply to logging today (20 CFR part 655, subpart C), and

are the model from which the H-2A agricultural regulatory processing framework derived. 52

FR 20496 Jun. 1, 1987. Logging employers, therefore, have been subject to a substantially

similar set of obligations and processes as H-2A employers, but their nonimmigrant employees

must enter on H-2B, rather than H-2A, visas.




                                                65
       The Department no longer sees any reason to maintain two substantially similar yet

slightly divergent processes for agriculture and logging, and intends to return to our 1965-1986

practice of treating both activities alike. The types of activities in which the employers in both

fields engage—i.e., harvesting of agricultural and horticultural products—and the labor

certification requirements to which they are subject, are essentially the same.

       Accordingly, the Department proposes to include logging employment in its definition of

“agricultural activity” for purposes of H-2A labor certification. By doing so, the Department is

exercising its legislative authority under § 101(a)(15)(H)(ii)(a) of the INA to expand the

definition of agriculture beyond the definitions in FICA and FLSA to include logging.

Conforming amendments are being made to reflect this change, including the removal of the

current regulations specific to logging employment. This change will result in loggers being

eligible for H-2A visas rather than H-2B.

       The Department seeks comments as to whether there are other businesses that should be

similarly included within the definition of agriculture under this program.



6.     Definitions

       The Department is proposing to include the definition of employee and to modify the

definition of employer to conform these definitions to those used in other Department-

administered programs. The definition of employee conforms to the Supreme Court’s holding in

Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322-324 (1992). The Department is

proposing these clarifications to remove any confusion that may exist for agricultural employers

who have compliance obligations under FLSA, MSPA and the H-2A program.




                                                 66
       In defining an H-2A worker, the INA gives the Secretary of Labor the authority to define

in regulations the term “agricultural labor or services,” with the requirement that the definition

include agricultural labor or services as defined in the IRC, the FLSA, and the pressing of apples

for cider on a farm. The work must also be of a temporary or seasonal nature. 8 U.S.C.

1101(a)(15)(h)(ii)(A). The activity of “pressing of apples for cider on a farm” was added to the

statute by Pub. L. 109-90, dated October 18, 2005. The Department proposes to change the

regulatory definition to reflect the 2005 amendment.

       The Department is also proposing changes to the regulatory definition of “agricultural

labor or services” to clarify that an activity that meets either the IRC or the FLSA definitions of

agriculture is considered agricultural labor or services for H-2A program purposes and to remove

limitations on the performance of traditional agricultural activities which, when performed for

more than one farmer, are not considered agricultural labor or services under the IRC or the

FLSA. The Department is also proposing clarifications to reflect that work activity of the type

typically performed on a farm and incident to the agricultural labor or services for which an H-

2A labor certification was approved may be performed by an H-2A worker. This clarification

will ensure that H-2A workers can engage in minor amounts of other incidental farm work

activity during periods when they are not performing the agricultural labor of services that is the

subject of their application. In no case can this work amount to more than an incidental portion

of the H-2A worker’s total labor or services for which they were admitted.



7.     Fees

       The proposed rule continues to provide that each employer (except joint employer

associations) of H–2A workers must pay to the Department appropriate fees for each temporary




                                                 67
agricultural labor certification received. The application fee for each employer receiving a

temporary agricultural labor certification is supplemented by an appropriate fee covering each H-

2A worker certified under the application. These processing fees, which are authorized by

statute and set by regulations originally published in 1988, are required by the current statutory

language to be deposited in the Treasury rather than being used to fund program costs at the

Department. Nevertheless, the Department is updating the fees to an amount appropriate to

comport with the statute’s expectation that the fee recover “the reasonable costs of processing”

H-2A applications.



II.    Other Proposed Amendments to the Department’s Regulations

A.     Changes to Part 780 and 788

       The Department proposes a modification to the FLSA regulations so that the production

of trees through the application of agricultural and horticultural techniques to be harvested and

sold for seasonal ornamental use as Christmas trees will be recognized as “agriculture” under the

FLSA. The Department has determined that this modification is necessary in light of the Fourth

Circuit Court of Appeals’ decision in U.S. Department of Labor v. North Carolina Growers

Association, 377 F.3d 345 (4th Cir. 2004), as well as a recognition that modern production of

such trees typically involves extensive care and management. Indeed, Christmas tree production

is already an eligible job under the H-2A program.

       The FLSA provides that employees who are “employed in agriculture” are exempt from

the FLSA’s overtime provisions. 29 U.S.C. 213(b)(12). Section 203(f) of the FLSA defines

“agriculture” as follows:


       Agriculture includes farming in all its branches and among other things includes



                                                68
       the cultivation and tillage of the soil, dairying, the production, cultivation,
       growing, and harvesting of any agricultural or horticultural commodities
       (including commodities defined as agricultural commodities in section 1141j(g)
       of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any
       practices (including any forestry or lumbering operations) performed by a farmer
       or on a farm as an incident to or in conjunction with such farming operations,
       including preparation for market, delivery to storage or to market or to carriers for
       transportation to market.

       In an interpretive bulletin published in 1956, the Department interpreted § 203(f) of the

FLSA to exclude Christmas tree farming. See 29 CFR §§ 780.115, 780.200, 780.208. The Court

of Appeals for the Fourth Circuit has noted that the exclusion of Christmas tree farming from the

definition of “agriculture” is not consistent with the typical manner in which Christmas trees are

produced. Indeed, as the North Carolina Growers Association court recognized:


       Christmas tree farming has evolved since the FLSA was enacted in 1938. Before
       the 1960’s, Christmas tree harvesting was more in the nature of “enterprising
       individuals who took what nature provided.” . . . However, since the mid 1960’s,
       Christmas tree farming has evolved into the current system where growers plant
       and cultivate the trees for harvest.

N. Car. Growers Ass’n., 377 F.3d at 348 n.2 (internal citation omitted).

       Based on the Department’s experience, modern Christmas tree production usually

involves extensive care and management through the application of agricultural and horticultural

techniques to raise such trees as ornamental horticultural products, such as planting seedlings in

beds in a nursery; on-going treatment with fertilizer, herbicides, and pesticides as necessary; re-

planting in lineout beds; lifting and re-planting the small trees in cultivated soil with continued

treatment with fertilizers, herbicides, and pesticides as indicated by testing to see if such

applications are necessary; pruning or shearing yearly; and harvesting of the tree for seasonal

decorative use typically within 7 to 10 years of planting. The Fourth Circuit described these




                                                  69
activities as “significant changes [from the time of the initial interpretive bulletin] in the

industry’s cultivation and management techniques.”

        Thus, the Department proposes to revise those references in 29 C.F.R. part 780 and 29

C.F.R. part 788 stating that planted Christmas trees are within the scope of forestry and

lumbering operations and are not agricultural or horticultural commodities for purposes of

“agriculture” under the FLSA.

        The Department does not intend to change the treatment of Christmas trees that are not

produced through the application of agricultural or horticultural techniques as discussed above.

Production of such trees will continue to fall outside the scope of “agriculture” under the FLSA.

In sections listed below for changes, references to § 13(a)(13) have been updated to make the

reference to 13(b)(28). The exemption in 13(a)(13) for forestry and lumbering operations was

repealed and a new exemption from overtime only was created in § 13(b)(28) in the 1974

amendments to the FLSA. See §, 23(b)(1) and (2), Pub. L. 93-259, 88 Stat. 69 (Apr. 8, 1974).



        B.      Changes to Part 501

        Section 218(g)(2) of the INA authorizes the Secretary of Labor to take such actions,

including imposing appropriate penalties and seeking appropriate injunctive relief and specific

performance of contractual obligations, as may be necessary to ensure employer compliance with

terms and conditions of employment under this section of the statute. The Secretary determined

that enforcement of the contractual obligations of employers under the H-2A program is the

responsibility of the WHD. Regulations at 29 CFR part 501 were issued to implement the

WHD’s responsibilities under the H-2A program; amendment of these regulations is part of this

proposed rulemaking.




                                                  70
       Concurrent with the Department’s proposed amendments to its regulations in 20 CFR

part 655 subpart B to modernize the certification of temporary employment of nonimmigrant H-

2A workers, the Department proposes to amend its regulations at 29 CFR part 501 regarding

enforcement under the H-2A program.

       Changes are proposed for enhanced enforcement to complement the modernized

certification process so that workers are appropriately protected when employers fail to meet the

requirements of the H-2A program. This notice of proposed rulemaking would make changes to

specific sections of the existing regulations in 29 CFR part 501, as summarized below.



       1. Definitions

       Section 501.10 of the current regulations sets forth the definitions used in part 501. The

proposed rule would update the definition of “work contract” to reflect language used in the

proposed changes to 20 CFR part 655, subpart B. As had been done in the current regulations,

proposed § 501.10 incorporates the same definitions listed in 20 CFR part 655, subpart B that

pertain to 29 CFR part 501.

       In addition, language in §§ 501.4, 501.15, and elsewhere has been modified to indicate

that “corresponding employment” includes only U.S. workers who are newly hired by the

employer in the occupations and during the period of time set forth in the application for labor

certification and does not include U.S. workers who were already employed by the H-2A

employer at the time the application was filed. The INA requires that U.S. workers hired during

the H-2A recruitment period, including workers who respond to job advertisements, must be

offered and provided no less than the same wages, benefits, and working conditions that the

employer offers, intends to offer, or provides to the H-2A workers. U.S. workers who were




                                                71
already employed by the H-2A employer at the time the labor certification application was filed,

however, cannot possibly be adversely affected by the subsequent hiring of H-2A workers who

are paid higher wages. This modification to the Department’s enforcement policy appropriately

ties that policy to the Department’s statutory authority to prevent adverse effects to the wages

and working conditions of U.S. workers. The Department notes that its experience with the H-

2A program indicates that situations where H-2A workers are paid more than similarly employed

U.S. workers will arise very rarely, if ever, in practice.



       2.. Sanctions and Remedies – General

       The number of FLCs applying for labor market certifications enabling them to hire and

employ H-2A workers has risen in recent years and is expected to continue to increase. The

WHD’s enforcement statistics reveal that FLCs are generally more likely to be found in violation

of applicable requirements than fixed-site agricultural employers. To address this higher

violation rate of FLCs and given the transient nature of FLCs, ESA has proposed in 29 CFR part

655, subpart B that FLCs must attest to, obtain, and maintain a surety bond, based on the number

of workers employed, throughout the period the temporary labor certification is in effect,

including any extensions thereof. WHD will have authority to make a claim against the surety

bond to secure unpaid wages or other benefits due to workers under the labor certification.



       3. Civil Monetary Penalties

       In order to deter significant violations of the H-2A worker protection provisions, §

501.19 would be amended to increase the maximum civil money penalties. The proposed

maximum civil money penalty amount would be increased from $1,000 to $5,000 for a willful




                                                  72
failure to meet a condition of the work contract, or for discrimination against a U.S. or H-2A

worker who in connection with the INA or these regulations has filed a complaint, has testified

or is about to testify, has exercised or asserted a protected right. Additionally, the fine amount

would be increased to up to $15,000 for a willful failure to meet a condition of the work contract

that results in displacing a U.S. worker employed by the employer during the period of

employment on the employer’s application, or during the period of 75 days preceding such

period of employment.

       The proposed penalties for violators who willfully disregard their obligations under an

attestation program would provide the Department with an effective tool to discourage potential

abuse of the program. Such penalties will deter willful violations, discrimination and

interference with investigations, and strengthen necessary enforcement of laws that protect

workers who may be unlikely to approach Government agencies to intercede on their behalf.

       Further, if a violation of an applicable housing or transportation safety and health

provision of the work contract causes the death or serious injury of any worker, the Department

proposes a new penalty of up to $50,000 per worker. The Department also proposes a new

penalty of up to $100,000 per worker where the violation of a safety and health provision

involving death or serious injury is repeated or willful.

       In an attestation-based program the proposed penalties for such violations of applicable

safety and health provisions would provide a meaningful assurance that participants meet their

obligation to see that housing and/or transportation provided to the workers meets all applicable

safety and health requirements and that housing and/or vehicles used in connection with

employment do not endanger workers. The proposed penalty for repeat or willful violations that

involve a fatality or serious injury will provide a significant deterrent to ensure that such




                                                 73
violations do not occur. The Department’s experience in enforcing safety and health standards

shows that penalties are an important tool in reducing fatalities and injuries. Increased penalties

will induce employers to be more proactive in their approach to complying with the applicable

safety and health standards.

        The assessment of the maximum penalty under proposed § 501.19 would not be

mandatory, but rather would be based on regulatory guidelines and the facts of each individual

case.



        4.     Debarment by the WHD

        The current regulations provide ETA the authority to deny certification (i.e., debarment)

and require the WHD to report findings to make a recommendation to ETA to deny future

certifications. Under proposed § 501.20, debarment authority for issues arising from WHD

investigations would reside with the WHD Administrator, while debarment authority for issues

arising out of the attestation process would remain with ETA. This proposal is in keeping with

recommendations made as far back as 1997 in a General Accounting Office (GAO) report to

Congress in which GAO proposed that authority to suspend employers with serious labor

standard or H-2A contract violations be extended to the WHD. See U.S. Gen. Accounting

Office: Report to Congressional Committees: H-2A Agricultural Guestworker Program,

Changes Could Improve Services to Employers and Better Protect Workers, 68, 70 (1997)).

Both agencies will coordinate their activities whenever debarment is considered. The proposed

standards for debarment within the WHD’s purview are identical to those proposed by ETA for

debarment actions under 20 CFR part 655, thus ensuring consistency in application. This change

will allow administrative trials and appeals for civil money penalties assessed by the WHD to be




                                                74
consolidated with the debarment actions that arise from the same facts. This change will remove

the requirement that ETA review WHD investigations, eliminating a step in the administrative

process and allowing for more expeditious proceedings and efficient enforcement. This will not

affect ETA’s ability to institute its own debarment proceedings regarding issues that arise from

the application or attestations or ETA’s proposed audits. Conforming changes are proposed to

other sections in part 501 to reflect the proposed WHD debarment authority.



       5.      Referrals to the Department’s Employment and Training Administration (ETA)


       Section 501.21 is proposed to conform to the proposed changes in 20 CFR part 655,

which provides ETA the authority to revoke an existing certification, by allowing the WHD to

recommend revocation to ETA based upon the WHD ’s investigative determinations.



       6.      Exhaustion of Administrative Remedies

       Sections 501.33 and 501.42 would be revised to include language that clarifies and

assures that the exhaustion of all administrative remedies is required before an appeal of a final

agency action may be taken to the Federal courts pursuant to the Administrative Procedures Act.



       7.      Nomenclature Changes

       The proposed rule would also make a number of non-substantive nomenclature changes

and technical corrections to 29 CFR part 501. These include: Reflecting that the INA was

amended in 1988 while the current regulations were published in June 1987 and H-2A provisions

that were in § 216 are now codified in § 218 of the INA; changing references from the State




                                                75
Employment Service offices to the SWA; and reflecting that appeals from administrative law

judge decisions are made to the Department’s Administrative Review Board.




III.   Administrative Information

A.     Executive Order 12866 – Regulatory Planning and Review.

       Under Executive Order (E.O.) 12866, the Department must determine whether a

regulatory action is “significant” and therefore subject to the requirements of the E.O. and

subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O.

defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an

annual effect on the economy of $100 million or more, or adversely and materially affecting a

sector of the economy, productivity, competition, jobs, the environment, public health or safety,

or State, local or tribal governments or communities (also referred to as “economically

significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or

planned by another agency; (3) materially altering the budgetary impacts of entitlement grants,

user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel

legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set

forth in the E.O.

       The Department has determined that this proposed rule is not an “economically

significant regulatory action” under § 3(f)(1) of E.O.12866. The procedures for filing an

Application for Temporary Employment Certification under the H-2A visa category on behalf of

nonimmigrant temporary agricultural workers, as proposed under this regulation, will not have

an economic impact of $100 million or more. The regulation will not adversely affect the




                                                  76
economy or any sector thereof, productivity, competition, jobs, the environment, nor public

health or safety in a material way. In fact, this proposed rule is intended to provide relief to the

affected employers both directly, by streamlining the process by which they can apply for H-2A

labor certification, and indirectly, by increasing the available legal workforce. The Department,

however, has determined that this proposed rule is a “significant regulatory action” under §

3(f)(4) of the E.O.

        Summary of Impacts

        The changes being proposed are expected to have little or no direct cost impact, above

and beyond the baseline of the current costs required by the program as it is currently

implemented, with the exception of increased fees for filing. The re-engineering of the program

requirements, including attestation-based applications and pre-application recruitment, will have

the effect of reducing employer application costs in time and resources and introduce processing

efficiencies that will reduce costs for employers, particularly costs associated with loss of labor

due to delayed certifications. The Department is specifically requesting comment on what costs

these policies introduce and what efficiencies may be gained from adopting these new proposed

procedures, toward the goal of ensuring a thorough consideration and discussion of the costs and

benefits at the final rule stage.

        The additional filing fees will offset these reductions to a certain extent, but the

Department believes that the increased filing fees represent the actual cost of processing and will

have a net benefit to employers in the increased access to the program and the benefit of having a

workforce in place when and where needed. The additional record retention costs for employers

are minimal. The new record retention requirements will require a burden of approximately 10

minutes per year per application to retain the application and supporting documents above and




                                                  77
beyond the 1 year of retention required by regulations of the Equal Employment Opportunity

Commission (EEOC) at 29 CFR 1602.14, promulgated pursuant to Title VII of the Civil Rights

Act and the American With Disabilities Act, and 29 CFR 1627.3(b)(3), promulgated pursuant to

the Age Discrimination in Employment Act. In FY 2007, 7,725 employers filed requests for

80,294 workers. Using standard administrative wage rates, including benefits, of $60.4220 per

hour, this additional burden for each of the 4 years following the mandated year above is

approximately $77,791 total per year (or approximately $10 per applicant per year) if the current

number of requests remains constant. Any increase in the use of the program would result in the

same ultimate burden to applicants.

        Employers will experience efficiencies as a result of the reengineering of the process.

These savings are expected to be found in the simplified attestation-based application. While the

Department cannot precisely estimate the cost savings as a result of this time saved, it believes

that employers will experience economic benefits as a result of this reengineering of the

application process to an attestation-based submission, including lower advertising costs and

fewer labor costs from overlapping or duplicative workforces. These savings may be impacted

by increased usage of the program by employers; while at this time it is impossible to tell exactly

what that increased usage will be, the savings to employers will be universal to new users as well

as current participants.



B.      Regulatory Flexibility Analysis.

        When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA)

requires that a regulatory flexibility analysis be prepared and made available for public comment.


20
  Derived by utilizing the Bureau of Labor Statistics 2006 median wage for Human Resources Manager wage of
$42.55 and a 1.42 factor for the cost of benefits and taxes.


                                                     78
The RFA must describe the impact of the proposed rule on small entities. (5 U.S.C. 603(a)).

Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the

proposed rulemaking is not expected to have significant economic impact on a substantial

number of small entities. The Assistant Secretary of ETA has notified the Chief Counsel for

Advocacy, Small Business Administration (SBA), and certifies under the RFA at 5 U.S.C.

605(b), that this proposed rule will not have a significant economic impact on a substantial

number of small entities. The rule does not substantively change existing obligations for

employers who choose to participate in the H-2A temporary agricultural worker program.

         The factual basis for such a certification is that even though this proposed rule can and

does affect small entities, there are not a substantial number of small entities that will be

affected, nor is there a significant economic impact upon those small entities that are. In FY

2007, 7,725 employers filed requests for 80,294 workers. Of the total 2,089,790 farms, 98

percent have sales of less than $750,000 per year and fall within SBA’s definition of small

entities. However, the Department does not expect that there will be a substantial number of

small businesses that will utilize the H-2A program in light of its prior history. In FY 2007,

7,725 employers filed requests for 80,294 workers. Even if all of the 7,725 employers who filed

applications under H-2A in FY2007 were small entities, the percentage of small entities applying

for temporary foreign worker certification would be only 3 percent of the total number of small

farms.

         The Department contends the costs incurred to employers under this proposed rule will

not be substantially different from those incurred under the current application filing process.

Employers seeking to hire foreign workers on a temporary basis under the H-2A program must

continue to establish to the Secretary’s satisfaction that their recruitment attempts have not




                                                  79
yielded enough qualified and available U.S. workers and that their hiring of foreign workers will

not adversely affect the wages and working conditions of similarly employed U.S. workers.

Similar to the current process, employers under this proposed H-2A process will file a

standardized application for temporary labor certification and will retain recruitment

documentation, a recruitment report, and any supporting evidence or documentation justifying

the temporary need for the services or labor to be performed.

           To estimate the cost of this reformed H-2A process on employers, the Department

calculated each employer will likely pay in the range of $500 to $1,850 to meet the advertising

and recruitment requirements for a job opportunity, and spend approximately 3 hours of staff

time preparing the standardized applications for the required offered wage rate and for temporary

labor certification, final recruitment report, and retaining all other required documentation (e.g.,

newspaper ads, job orders, business necessity) in a file for audit purposes that is not otherwise

required to be retained in the normal course of business. In estimating employer staff time costs,

the Department used the median hourly wage rate for a Human Resources Manager ($42.55), as

published by the DOL’s OES survey, O*Net OnLine,21 and increased it by a factor of 1.42 to

account for employee benefits and other compensation for a total staff time cost of $181.00 per

applicant.

           The Department acknowledges that there might be some extremely small businesses that

may incur additional costs to file their application on-line if and when the Department moves to

an electronic processing model. However, neither these additional costs nor the advertising and

human resource staff time, if any, will eliminate more than 10 percent of the businesses’ profits;

exceed 1 percent of the gross revenue of the entities in a particular sector; nor exceed 5 percent

of the labor costs of the entities in the sector.
21
     Source: Bureau of Labor Statistics 2006 wage data.


                                                          80
        The total costs for the small entities affected by this program will be reduced or stay the

same as the costs for participating in the current program. Even assuming that all entities who

file H-2A labor certification applications are considered to be small businesses, the net economic

effect is not significant.

        The Department invites comments from members of the public who believe there will be

a significant impact on a substantial number of small entities or who disagree with the size

standard used by the Department in certifying that this proposed rule will not have a significant

impact on a substantial number of small entities.



C.      Unfunded Mandates Reform Act of 1995.

        Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) directs agencies

to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the

private sector. This proposed rule has no “Federal mandate,” which is defined in 2 U.S.C.

658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector

mandate.” A Federal mandate is any provision in a regulation that imposes an enforceable duty

upon State, local, or tribal governments, or imposes a duty upon the private sector which is not

voluntary. A decision by a private entity to obtain an H-2A worker is purely voluntary and is,

therefore, excluded from any reporting requirement under the Act.

        The SWAs are mandated to perform certain activities for the Federal Government under

this program, and are compensated for the resources used in performing these activities. Under

the current regulations, employers file applications for H-2A labor certifications concurrently

with the Department and the SWA having jurisdiction over the area of intended employment.

The SWA and the Department through the NPCs of the OFLC both receive the application and




                                                 81
review the terms of the job offer. The SWA then places the job order to initiate local

recruitment. The SWA directly supervises and assists employer recruitment, and make referrals

of U.S. workers. The NPC directs the SWA to place job orders into intrastate/interstate

clearance ensuring employers meet advertising and recruitment requirements. The SWA is

responsible for processing the employer’s certification request for H-2A labor certification,

overseeing the recruitment and directing referrals to the employer. SWAs coordinate all

activities regarding the processing of H-2A applications directly with the appropriate NPC for

their jurisdiction, including transmittal to the NPC of housing inspection results, prevailing wage

surveys, prevailing practice surveys or any other material bearing on the application. Once the

application is reviewed by the SWA and after the employer conducts its required recruitment, the

SWA then sends the complete application to the appropriate NPC for final certification or denial.

       Under the re-engineered process in the NPRM, the SWAs will still play a role in the

clearance of job orders, the referral of eligible U.S. workers to employers, and conducting

housing inspections, but will no longer be responsible for the receipt and substantive review of

H-2A applications. SWA activities under the H-2A program are currently funded by the

Department pursuant to grants provided under the Wagner-Peyser Act. 29 U.S.C. 49 et seq. The

Department anticipates continuing funding under the Wagner-Peyser Act. As a result of this

NPRM and the publication of a final regulation, the Department will analyze the amounts of such

grants made available to each State to fund the activities of the SWAs.



D.     Small Business Regulatory Enforcement Fairness Act of 1996.

       The Department determined that this rulemaking did not impose a significant impact on a

substantial number of small entities under the RFA; therefore, the Department is not required to




                                                82
produce any Compliance Guides for Small Entities as mandated by the Small Business

Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801) (SBREFA). The Department has

similarly concluded that this proposed rule is not a "major rule" requiring review by the

Congress under the SBREFA because it will not likely result in: (1) an annual effect on the

economy of $100 million or more; (2) a major increase in costs or prices for consumers,

individual industries, Federal, State or local Government agencies, or geographic regions; or (3)

significant adverse effects on competition, employment, investment, productivity, innovation, or

on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or

export markets.



E.     Executive Order 13132 – Federalism.

       The Department has reviewed this proposed rule in accordance with E.O. 13132

regarding federalism and has determined that it does not have “federalism implications.” The

proposed rule does not “have substantial direct effects on States, on the relationship between the

States, or on the distribution of power and responsibilities among the various levels of

Government” as described by E.O. 13132. Therefore, the Department has determined that this

proposed rule will not have a sufficient federalism implication to warrant the preparation of a

summary impact statement.



F.     Executive Order 13175, Indian Tribal Governments.

       This rule was reviewed under the terms of E.O. 13175 and determined not to have “tribal

implications.” The rule does not have “substantial direct effects on one or more Indian tribes, on

the relationship between the Federal Government and Indian tribes, or on the distribution of




                                                83
power and responsibilities between the Federal Government and Indian tribes.” As a result, no

tribal summary impact statement has been prepared.



G.     Assessment of Federal Regulations and Policies on Families.

       Section 654 of the Treasury and General Government Appropriations Act, enacted as part

of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub.L.

105-277,112 Stat. 2681) requires the Department to assess the impact of this proposed rule on

family well-being. A rule that is determined to have a negative effect on families must be

supported with an adequate rationale.

       The Department has assessed this proposed rule and determines that it will not have a

negative effect on families.



H.     Executive Order 12630.

       This proposed rule is not subject to E.O. 12630, Governmental Actions and Interference

with Constitutionally Protected Property Rights, because it does not involve implementation of a

policy with takings implications.



I.     Executive Order 12988.

       This regulation has been drafted and reviewed in accordance with E.O. 12988, Civil

Justice Reform, and will not unduly burden the Federal court system. The regulation has been

written so as to minimize litigation and provide clear legal standard for affected conduct, and has

been reviewed carefully to eliminate drafting errors and ambiguities.




                                                84
J.     Plain Language.

       The Department drafted this Notice of Proposed Rulemaking in plain language.



K.     Executive Order 13211, Energy Supply.

       This rule is not subject to E.O. 13211. It will not have a significant adverse effect on the

supply, distribution, or use of energy.



L.     Paperwork Reduction Act.

       This NPRM contains revised paperwork requirements at §§ 655.100(a), 655.101,

655.102(c), 655.104(d)(5), 655.105, 655.106, 655.107, 655.108, and 655.109 of Title 20 in the

Code of Federal Regulations. This NPRM proposes to significantly change the method of

collecting information for the H-2A program for which the current collection instruments do not

suffice. Employers are currently required to file a Form ETA 750 (OMB Control Number 1205-

0015) and Form ETA 790 (OMB Control Number 1205-0134) when requesting a labor

certification for temporary agricultural workers. Additionally, each SWA has its own form for

its offered wage rate determinations. This proposed rule revises the current process for applying

by requiring petitioners to attest to certain terms, conditions, and obligations. These attestations

are made to the U.S. Government in accordance with these proposed regulations in order to

modernize processing. To streamline the process, the proposed rule mandates the offered wage

rate determination requests be filed with the Department instead of the individual SWAs. Under

the Paperwork Reduction Act of 1995 (PRA), OMB considers the attestations and the wage rate

determination requests an information collection requirement subject to review. Accordingly,

this information collection in this proposed rule has been submitted to OMB for review under §




                                                 85
3507(d) of the PRA. Copies of the proposed information collection request (ICR) can be

obtained by contacting the office listed below in the addressee section of this notice or at this

Web site:

http://www.doleta.gov/OMBCN/OMBControlNumber.cfm or

http://www.reginfo.gov/public/dol/pramain. Written comments are encouraged and will be

accepted until [insert date 60 days from date of publication in the FEDERAL REGISTER].

       When submitting comments on the information collection, your comments should

address one or more of the following four points.

REVIEW FOCUS: The Department of Labor is particularly interested in comments which:

       *       Evaluate whether the proposed collection of information is necessary for the

       proper performance of the functions of the agency, including whether the information

       will have practical utility;

       *       Evaluate the accuracy of the agency's estimate of the burden of the proposed

       collection of information, including the validity of the methodology and assumptions

       used;

       *       Enhance the quality, utility, and clarity of the information to be collected; and

       *       Minimize the burden of the collection of information on those who are to respond,

       including through the use of appropriate automated, electronic, mechanical, or other

       technological collection techniques or other forms of information technology, e.g.,

       permitting electronic submissions of responses.

I.     Overview of Information Collection Form 1

Type of Review: New

Agency:     Employment and Training Administration




                                                 86
Title:    Application for Temporary Employment Certification

OMB Number:        1205-NEW1

Agency Number(s): (Proposed) Form ETA-9142

Recordkeeping:     On occasion.

Affected Public: Individuals, households, businesses, farms, Federal, State, local and tribal

governments.

Total Respondents: 7,725

Estimated Total Burden Hours: 16,738

Total Burden Cost (capital/startup): $9,573,400

Total Burden Cost (operating/maintaining): 0



II.      Overview of Information Collection Form 2.

Type of Review: New

Agency:     Employment and Training Administration

Title:    Job Offer and Required Wage Request Form

OMB Number:        1205-NEW2

Agency Number(s): (Proposed) Form ETA-9141

Recordkeeping:     On occasion.

Affected Public: Individuals, households, businesses, farms, Federal, State, local and tribal

governments.

Total Respondents: 7,725

Estimated Total Burden Hours: 5,794

Total Burden Cost (capital/startup): 0




                                               87
Total Burden Cost (operating/maintaining): 0



Comments submitted in response to this comment request will be summarized and/or included in

the request for OMB approval of the ICR; they will also become a matter of public record. All

comments and suggestions or questions regarding additional information should be directed to

the Federal e-Rulemaking Portal at: www.regulations.gov or mailed to the Office of Information

and Regulatory Affairs of the Office of Management and Budget, Washington DC 20503,

Attention: Desk Officer for Employment & Training Administration. The information collection

aspects of the proposed rulemaking will not take effect until published in a final rule and

approved by OMB. Persons are not required to respond to a collection of information unless it

displays a currently valid OMB control number as required in 5 CFR 1320.11(k)(1).



M..    Catalog of Federal Domestic Assistance Number.

       This program is listed in the Catalog of Federal Domestic Assistance at Number 17-273,

“Temporary Labor Certification for Foreign Workers.”



List of Subjects in 20 CFR part 655

       Administrative practice and procedure, Foreign workers, Employment, Employment and

training, Enforcement, Forest and Forest Products, Fraud, Health professions, Immigration,

Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements,

Unemployment, Wages, Working conditions.



List of Subjects in 29 CFR part 501




                                                88
Administrative practice and procedure, Agriculture, Aliens, Employment, Housing, Housing

standards, Immigration, Labor, Migrant labor, Penalties, Transportation, Wages.



List of Subjects in 29 CFR part 780

Agricultural commodities, Agriculture, Employment, Forests and forest products, Labor,

Minimum wages, Nursery stock, Overtime pay, Wages



List of Subjects in 29 CFR part 788

Employment, Forests and forest products, Labor, Overtime pay, Wages




       For reason stated in the preamble, the Department of Labor proposes that 20 CFR 655

and 29 CFR and parts 501, 780, and 788 be amended as follows:

       1. Revise heading of Part 655 to read as follows:



PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE

UNITED STATES



       2. Revise the Table of Contents for Subparts B and C to read as follows:

*      *      *       *      *



Subpart B—Labor Certification Process for Temporary Agricultural Employment in the

United States (H-2A Workers)




                                              89
§ 655.90 Purpose and scope of subpart B.
§ 655.92 Authority of ETA-OFLC.
§ 655.93 Special procedures
§ 655.100 Overview of subpart B and definition of terms.
§ 655.101 Applications for temporary employment certification in agriculture.
§ 655.102 Required pre-filing recruitment.
§ 655.103 Advertising requirements.
§ 655.104 Contents of job offers.
§ 655.105 Assurances and obligations of H-2A employers.
§ 655.106 Assurances and obligations of Farm Labor Contractors.
§ 655.107 Receipt and processing of applications.
§ 655.108 Offered Wage Rate.
§ 655.109 Labor certification determinations.
§ 655.110 Validity and scope of temporary labor certifications.
§ 655.111 Required departure.
§ 655.112 Audits.
§ 655.113 H-2A applications involving fraud or willful misrepresentation.
§ 655.114 Petition for higher meal charges.
§ 655.115 Administrative review and de novo hearing before an administrative law judge.
§ 655.116 Job Service Complaint System; enforcement of work contracts.
§ 655.117 Revocation of H-2A certification approval.
§ 655.118 Debarment.

Subpart C [Reserved]


*      *       *      *       *



       3. Revise the authority citation for part 655 to read as follows:


        Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182 (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d).; § 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); § 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184
note); § 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); § 323(c), Pub. L.
103-206, 107 Stat. 2428; § 412(e), Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h)(4)(i).
        Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR
214.2(h).
        Subparts A and C issued under 8 CFR 214.2(h).
        Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 C.F.R.
214.2(h).
        Subparts D and E authority repealed.
        Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and §323(c), Pub. L. 103-206,
107 Stat. 2428.



                                                90
       Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t),
and 1184(g) and (j); § 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note);
§ 412(e), Pub. L. 105-277, 112 Stat. 2681; and 8 C.F.R. 214.2(h).
       Subparts J and K issued under § 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C.
1184 note).
       Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); § 2(d), Pub.
L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8
C.F.R. 214.2(h).


       4. Revise 655.1 to read as follows:

655.1 Scope and Purpose of Subpart A

       This subpart sets forth the procedures governing the labor certification process for the

temporary employment of nonimmigrant foreign workers in the United States in occupations

other than agriculture or registered nursing.



       5. Revise Subpart B to read as follows:



Subpart B—Labor Certification Process for Temporary Agricultural Employment in the

United States (H-2A Workers)



§ 655.90 Purpose and scope of subpart B.

       (a) General. This subpart sets out the procedures established by the Secretary of Labor

(the Secretary) to acquire information sufficient to make factual determinations of: (1) Whether

there are sufficient able, willing, and qualified U.S. workers available to perform the temporary

and seasonal agricultural employment for which an employer desires to import nonimmigrant

foreign workers (H-2A workers); and (2) whether the employment of H-2A workers will

adversely affect the wages and working conditions of workers in the U.S. similarly employed.




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§ 655.92 Authority of ETA-OFLC.

       Under this subpart, the accepting for consideration and the making of temporary

agricultural labor certification determinations are ordinarily performed by the Administrator,

Office of Foreign Labor Certification (OFLC), who, in turn, may delegate this responsibility to a

designated staff member e.g. a Certifying Officer (CO).



§ 655.93 Special procedures.

       (a) Systematic process. This subpart provides systematic and accessible procedures for

the processing of applications from agricultural employers and associations of employers for the

certification of employment of nonimmigrant workers, usually in relation to the production or

harvesting of a particular agricultural crop or the raising of livestock for market.

       (b) Establishment of special procedures. To provide for a limited degree of flexibility in

carrying out the Secretary's responsibilities under the INA, while not deviating from statutory

requirements to determine U.S. worker availability and make a determination as to adverse

effect, the OFLC Administrator has the authority to establish or to revise special procedures in

the form of variances for processing certain H-2A applications when employers can demonstrate

upon written application to and consultation with the OFLC Administrator that special

procedures are necessary. In a like manner, for work in occupations characterized by other than

a reasonably regular workday or workweek, such as the range production of sheep or other

livestock, the Administrator has the authority to establish monthly, weekly, or bi-weekly adverse

effect wage rates for those occupations, for a Statewide or other geographical area, other than the

rates established pursuant to § 655.108, provided that the Administrator uses a methodology to




                                                 92
establish adverse effect wage rates that are consistent with the methodology in § 655.108. Prior

to making determinations under this paragraph (b), the Administrator may consult with employer

and worker representatives.

       (c) Construction. This subpart shall be construed to permit the OFLC Administrator,

where the OFLC Administrator deems appropriate, to devise, continue, revise, or revoke special

procedures where circumstances warrant. These include procedures previously in effect for the

handling of applications for sheepherders in the Western States (and adaptation of such

procedures to occupations in the range production of other livestock), for custom combine crews,

and others on an as-needed basis.



§ 655.100 Overview of subpart B and definition of terms.


       (a) Overview — (1) Filing application process. (i) This subpart provides guidance to an

employer that desires to apply for temporary agricultural labor certification for the employment

of H–2A workers to perform agricultural employment of a temporary or seasonal nature. The

regulations in this subpart provide that such employer shall file an H–2A application, including a

job offer, on forms prescribed by the Employment and Training Administration (ETA), that

describes the material terms and conditions of employment to be offered and afforded to U.S.

and H–2A workers, with the OFLC Administrator. The entire application shall be filed with the

OFLC Administrator at least 45 calendar days before the first date the employer requires the

services of the H-2A workers. The application will contain attestations of the employer’s

compliance or promise to comply with program requirements regarding recruitment of eligible

U.S. workers, including the payment of an appropriate wage, and terms and conditions of

employment.



                                               93
        (ii) No earlier than 120 calendar days and no later than 75 calendar days before the first

date the employer requires the services of the H-2A workers, the employer shall initiate positive

recruitment of eligible U.S. workers and cooperate with the local office of the State Workforce

Agency (SWA) which serves the area of intended employment to place a job order into intrastate

and interstate recruitment. To comply with the regulation and as part of its positive recruitment,

an employer will (1) obtain the appropriate agricultural wage directly from the ETA National

Processing Center (NPC); (2) place a job order with the SWA; (3) place advertisements meeting

the requirements of this regulation; (4) contact former U.S. workers; and (5) engage in

recruitment in traditional labor supply States, when required, based on an annual determination

from the Secretary, where such determination results in a finding of a multistate region of

traditional or expected labor supply with a significant number of U.S. workers who, if recruited,

would be willing to make themselves available at the time and place needed. The SWA will

post a job order locally, as well as in all States listed in the application as anticipated work sites

and in any States in which the Secretary finds that a multistate region of traditional or expected

labor supply exists with a significant number of U.S. workers who, if recruited, would be willing

to make themselves available at the time and place needed. No more than 60 days prior to the

first date the employer requires the services of the H-2A workers, the employer will prepare an

initial written recruitment report that it must submit with its application. The employer will

cease any recruitment and acceptance of referrals of eligible U.S. workers no earlier than the

actual date on which the H-2A workers depart for the place of work, or no earlier than three days

prior to the first date the employer requires the services of the H-2A workers, whichever is later.


        (iii) The application for H-2A temporary labor certification may be filed by mail; in

addition, the Department may require the application to be filed electronically. Applications that



                                                  94
meet threshold requirements for completeness and accuracy will be forwarded for processing to

NPC staff, who will review each application for compliance with the criteria for certification.

Each application must meet requirements for timeliness, temporary need, and the provision of

assurances and other safeguards against adverse impact, and must be free of technical errors.

Employers receiving a labor certification must continue to cooperate with the SWA by accepting

referrals – and have the obligation to accept eligible U.S. workers who apply – until the date on

which the H-2A workers depart for the place of work, or 3 days prior to the first date the

employer requires the services of the H-2A workers, whichever is later.


       (2) Deficient applications. Under this subpart, the CO will promptly review the

application and notify the applicant in writing if there are deficiencies that render the application

not acceptable for certification, and afford the applicant a 5 business day period for resubmission

of an amended application or an appeal of the CO's refusal to approve the application as

acceptable for consideration. Amended applications that fail to cure deficiencies in a way that

would make them certifiable will be denied. In addition, when an initial application contains a

deficiency related to recruitment or some other element of adverse effect, the CO will deny the

application, instruct the employer to file a new application, and include guidance on how to

correct the deficiency during the new recruitment period. In these cases, the application must

contain a new, later date of need and demonstrate compliance with pre-filing recruitment

requirements.


       (3) Amendment of applications. This subpart provides for the amendment of

applications, at any time prior to the CO's certification determination, to increase the number of

workers requested in the initial application; and/or change the period of employment. In




                                                 95
circumstances where the recruitment was not materially altered by such amendments, such

amendments may not require an additional recruitment period for eligible U.S. workers.


       (4) Recruitment of U.S. workers; determinations —(i) Recruitment. If the employer

has complied with the criteria for certification, including recruitment of eligible U.S. workers,

the CO shall make a determination no later than 30 calendar days before the first date the

employer requires the services of the H-2A workers to grant or deny, in whole or in part, the

application for certification. Failure to comply with any of the certification criteria, and efforts

to cure deficiencies identified by the CO, may lengthen the time required for processing,

resulting in a final determination issued later than 30 days prior to date of need.


       (ii) Granted applications. This subpart provides that an application for temporary

agricultural labor certification shall be granted if the CO finds that the employer has not offered

and does not intend to offer foreign workers higher wages or better working conditions (or has

imposed less restrictions on foreign workers) than those offered and afforded to U.S. workers;

that sufficient U.S. workers who are able, willing, qualified, and eligible, will not be available at

the time and place needed to perform the work for which H-2A workers are being requested; and

that the employment of such nonimmigrants will not adversely affect the wages and working

conditions of similarly employed U.S. workers.


       (iii) Fees — (A) Amount. This subpart provides that each employer (except joint

employer associations) of H–2A workers shall pay to the appropriate CO fees for each temporary

agricultural labor certification received. The application fee for each employer receiving a

temporary agricultural labor certification is $200 plus $100 for each H-2A worker certified under

the Application for Temporary Employment Certification. In the case of a joint employer



                                                 96
association receiving a temporary agricultural labor certification, each employer-member

receiving a temporary agricultural labor certification shall pay an application fee of $200 plus

$100 for each H-2A worker certified for that employer-member. The joint employer association

will not be charged a separate fee. Any amendments requested pursuant to § 655.107(a)(6) by

the employer to a temporary agricultural labor certification, which are received, accepted, and

processed by the appropriate CO, will be subject to an additional processing fee of $100. In

circumstances where the CO grants an amendment to increase the number of H-2A workers

requested on the initial certified application, the employer shall be subject to a fee of $100 for

each additional H-2A worker certified on the amended temporary agricultural labor certification.


       (B) Timeliness of payment. The fee must be received by the appropriate CO no later

than 30 calendar days after the granting of each temporary agricultural labor certification. Fees

received any later are untimely. Failure to pay fees in a timely manner is a substantial program

violation which may result in the denial of future temporary agricultural labor certifications and

program debarment.


       (iv) Denied applications. This subpart provides that if the application for temporary

agricultural labor certification is denied, in whole or in part, the employer may seek review of the

denial, or a de novo hearing, by an administrative law judge as provided in this subpart.


       (b) Definitions of terms used in this subpart. For the purposes of this subpart:

       Administrative law judge means a person within the DOL Office of Administrative Law

Judges appointed pursuant to 5 U.S.C. 3105; or a panel of such persons designated by the Chief

Administrative Law Judge from the Board of Alien Labor Certification Appeals established by

part 656 of this chapter, but which shall hear and decide appeals as set forth in § 655.115. “Chief



                                                 97
Administrative Law Judge” means the chief official of the DOL Office of Administrative Law

Judges or the Chief Administrative Law Judge's designee.

       Administrator, Office of Foreign Labor Certification (OFLC) means the primary official

of the Office of Foreign Labor Certification, or the Administrator's designee.

       Adverse effect wage rate (AEWR) means the minimum wage rate that the Administrator

has determined must be offered and paid to every H-2A worker employed in a particular

occupation and/or area to ensure that the wages of similarly employed U.S. workers will not be

adversely affected.

       Agent means a legal entity or person, such as an association of agricultural employers, or

an attorney for an association, which (1) is authorized to act on behalf of the employer for

temporary agricultural labor certification purposes, and (2) is not itself an employer, or a joint

employer, as defined in this paragraph (b).

       Agricultural association means any nonprofit or cooperative association of farmers,

growers, or ranchers, incorporated or qualified under applicable State law, which recruits,

solicits, hires, employs, furnishes, or transports any H-2A worker. An agricultural association

may act as the agent of an employer for purposes of filing an H-2A temporary labor certification

application.

       Agricultural employer means any person who owns or operates a farm or ranch, or

otherwise engages in agriculture as defined in this subpart, and who either recruits, solicits, hires,

employs, furnishes, or transports any H-2A worker. Agricultural employers may file H-2A

applications either directly or through their agents or other legal representatives.

       Application for Temporary Employment Certification means the form submitted by an

employer to secure a temporary agricultural labor certification determination from DOL.




                                                 98
       Area of intended employment means the geographic area within normal commuting

distance of the place (worksite address) of intended employment of the job opportunity for which

the certification is sought. There is no rigid measure of distance which constitutes a normal

commuting distance or normal commuting area, because there may be widely varying factual

circumstances among different areas (e.g., average commuting times, barriers to reaching the

worksite, quality of regional transportation network, etc.). If the place of intended employment

is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within

the MSA is deemed to be within normal commuting distance of the place of intended

employment. The borders of MSAs are not controlling in the identification of the normal

commuting area; a location outside of an MSA may be within normal commuting distance of a

location that is inside (e.g., near the border of) the MSA.

       Attorney means any person who is a member in good standing of the bar of the highest

court of any state, possession, territory, or commonwealth of the United States, or the District of

Columbia, and who is not under suspension or disbarment from practice before any court or

before DHS or the United States Department of Justice's Executive Office for Immigration

Review. Such a person is permitted to act as an agent, representative, or attorney for an

employer and/or foreign worker under this part.

       Certifying Officer (CO) means the person designated by the Administrator, OFLC with

making programmatic determinations on employer-filed applications under the H-2A program.

       Date of need means the first date the employer requires services of the H-2A workers.

       Department of Homeland Security (DHS), through the United States Citizenship and

Immigration Services (USCIS), means the Federal agency making the determination under the




                                                 99
INA whether to grant petitions filed by employers seeking H-2A workers to perform temporary

agricultural work in the United States.

       DOL or Department means the United States Department of Labor.

       Eligible worker means, with respect to employment, an individual who is not an

unauthorized alien (as defined in section 274a(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), or in this

paragraph (b)) with respect to that employment.

       Employee means “employee” as defined under the general common law of agency.

Some of the factors relevant to the determination of employee status include: the hiring party’s

right to control the manner and means by which the work is accomplished; the skill required; the

source of the instrumentalities and tools for accomplishing the work; the location of the work;

the hiring party’s discretion over when and how long to work; and whether the work is part of

the regular business of the hiring party. Other applicable factors should be considered and no

one factor is dispositive.

       Employer means a person, firm, corporation or other association or organization (1)

which has a location within the U.S. to which U.S. workers may be referred for employment, or

qualifies as a farm labor contractor (FLC) under this subpart and (2) which has an employer

relationship with respect to employees under this subpart as indicated by the fact that it may hire,

pay, fire, supervise or otherwise control the work of any such employee. Where two or more

employers each have the definitional indicia of employment with respect to an employee, those

employers shall be considered to jointly employ that employee. FLCs, for purposes of this

subpart, shall be considered to be employers. An employer must possess a valid Federal

Employer Identification Number (FEIN).




                                                100
       Employment Service (ES) means the system of Federal and State entities responsible for

administration of the labor certification process for temporary and seasonal agricultural

employment of nonimmigrant foreign workers. This includes the State Workforce Agencies

(SWAs) and the OFLC, including the NPCs.

       Employment Standards Administration (ESA) means the agency within the Department

of Labor (DOL) that includes the Wage and Hour Division, and which is charged with carrying

out certain investigative and enforcement functions of the Secretary under the INA.

       Employment and Training Administration (ETA) means the agency within the

Department that includes the OFLC.

       Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103.

       Farm labor contracting activity means recruiting, soliciting, hiring, employing,

furnishing, or transporting any migrant and seasonal agricultural worker as those terms are used

in 29 U.S.C. 1801 et seq. and 29 CFR part 500, with the intent to contract those workers to fixed-

site employers.

       Farm Labor Contractor (FLC) means any person – other than an agricultural association,

or an employee of an agricultural association – who, for any money or other valuable

consideration paid or promised to be paid, performs any farm labor contracting activity.

       H-2A worker means any nonimmigrant who shall perform agricultural labor or services

of a temporary or seasonal nature under INA § 101(a)(15)(H)(ii)(a), as amended, 8 U.S.C.

1101(a)(15)(H)(ii)(a).

       INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq..




                                               101
       Job offer means the offer made by an employer or potential employer of H-2A workers to

eligible workers describing all the material terms and conditions of employment, including those

relating to wages, working conditions, and other benefits.

       Job opportunity means a job opening for temporary, full-time employment at a place in

the U.S. to which a U.S. worker can be referred.

       Office of Foreign Labor Certification (OFLC) means the organizational component of the

ETA that provides national leadership and policy guidance and develops regulations and

procedures to carry out the responsibilities of the Secretary of Labor under the INA concerning

the admission of foreign workers to the U.S. to perform work described in INA §

101(a)(15)(H)(ii)(a), as amended.

       Occupational Safety and Health Administration (OSHA) means the organizational

component of DOL that assures the safety and health of America's workers by setting and

enforcing standards; providing training, outreach, and education; establishing partnerships; and

encouraging continual improvement in workplace safety and health under the Occupational

Safety and Health Act, as amended.

       Positive recruitment means the active participation of an employer or its authorized hiring

agent in recruiting and interviewing qualified and eligible individuals in the area where the

employer's establishment is located and any other area designated by the Secretary as a multistate

area of traditional or expected labor supply with respect to the area where the employer’s

establishment is located in an effort to fill specific job openings with U.S. workers.

       Prevailing means, with respect to certain benefits other than wages provided by

employers and certain practices engaged in by employers, that practice or benefit which is most




                                                102
commonly provided by employers (including H-2A and non-H-2A employers) for the occupation

in the area of intended employment.

       Representative means the official employed by or duly authorized to act on behalf of the

employer with respect to activities entered into for and/or attestations made with respect to the

Application for Temporary Employment Certification. In the case of an attorney who acts as an

employer’s representative and who interviews and/or considers U.S. workers for the job offered

to the foreign worker(s), such individual must be the person who normally interviews or

considers, on behalf of the employer, applicants for job opportunities such as that offered in the

application, but which do not involve labor certifications.

       Secretary means the Secretary of Labor, the chief official of the U.S. Department of

Labor, or the Secretary's designee.

       Secretary of Homeland Security means the chief official of the U.S. Department of

Homeland Security (DHS) or the Secretary of Homeland Security’s designee.

       Secretary of State means the chief official of the U.S. Department of State (DOS) or the

Secretary of State’s designee.

       State Workforce Agency (SWA), formerly known as State Employment Security Agency

(SESA), means the State Government agency that receives funds pursuant to the Wagner-Peyser

Act to administer the public labor exchange delivered through the State’s one-stop delivery

system in accordance with the Wagner-Peyser Act. 29 U.S.C. 49 et seq. Separately, SWAs

receive ETA grants, administered by the OFLC, to assist them in performing certain activities

related to foreign labor certification – including conducting housing inspections.

       Temporary agricultural labor certification means the certification made by the Secretary

with respect to an employer seeking to file with DHS a visa petition to employ a foreign national




                                                103
as an H-2A worker, pursuant to §§ 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 of the INA that

(1) there are not sufficient workers who are able, willing, and qualified, and who will be

available at the time and place needed, to perform the agricultural labor or services involved in

the petition, and (2) the employment of the foreign worker in such agricultural labor or services

will not adversely affect the wages and working conditions of workers in the U.S. similarly

employed, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188.

       Temporary agricultural labor certification determination means the written determination

made by the CO to approve or deny, in whole or in part, an application for temporary agricultural

labor certification to employ a foreign worker(s).

       Unauthorized alien means, with respect to employment, an alien who is not at that time

either (a) a foreign national lawfully admitted for permanent residence or (b) otherwise

authorized to be so employed.

       United States (U.S.), when used in a geographic sense, means the continental United

States, Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam, and the

Virgin Islands of the United States.


       United States worker (U.S. worker) means a worker who is either

       (1) A citizen or national of the U.S., or


       (2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as

a refugee under § 207 of the INA, is granted asylum under § 208 of the INA, or is an immigrant

otherwise authorized (by the INA or by DHS) to be employed in the U.S..


       Wages means all forms of cash remuneration to a worker by an employer in payment for

personal services.



                                                   104
       (c) Definition of agricultural labor or services of a temporary or seasonal nature. For the

purposes of this subpart, “agricultural labor or services of a temporary or seasonal nature” means

the following:

       (1) “Agricultural labor or services.” Pursuant to § 101(a)(15)(H)(ii)(a) of the INA (8

U.S.C. 1101(a)(15)(H)(ii)(a)), “agricultural labor or services” is defined for the purposes of this

subpart as:

       (i) “Agricultural labor” as defined and applied in § 3121(g) of the Internal Revenue Code

of 1954 (26 U.S.C. 3121(g));

       (ii) “Agriculture” as defined and applied in § 3(f) of the Fair Labor Standards Act of

1938 (29 U.S.C. 203(f));

       (iii) The pressing of apples for cider on a farm;

       (iv) Logging employment; or

       (v) Handling, planting, drying, packing, packaging, processing, freezing, grading,

storing, or delivering to storage or to market or to a carrier for transportation to market, in its

unmanufactured state, any agricultural or horticultural commodity while in the employ of the

operator of a farm; or

       (vi) Other work typically performed on a farm that is incidental to the agricultural labor

or services for which the worker was sought.

       (2) An occupation included in either of the statutory definitions cited in paragraphs

(c)(1)(i) and (ii) of this section shall be “agricultural labor or services”, notwithstanding the

exclusion of that occupation from the other statutory definition. For informational purposes, the

statutory provisions are quoted below:




                                                 105
       (i) “Agricultural labor”. Section 3121(g) of the Internal Revenue Code of 1986 (26

U.S.C. 3121(g)), summarized as follows, defines the term “agricultural labor” to include all

service performed:

       (1) On a farm, in the employ of any person, in connection with cultivating the soil, or in
       connection with raising or harvesting any agricultural or horticultural commodity,
       including the raising, shearing, feeding, caring for, training, and management of
       livestock, bees, poultry, and furbearing animals and wildlife;

       (2) Services performed in the employ of the owner or tenant or other operator of a farm,
       in connection with the operation, or maintenance of such farm and its tools and
       equipment, or in salvaging timber or clearing land of brush and other debris left by a
       hurricane, if the major part of such service is performed on a farm;

       (3) In connection with the production or harvesting of any commodity defined as an
       agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended
       (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the
       operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or
       operated for profit, used exclusively for supplying and storing water for farming
       purposes;

       (4)(A) In the employ of the operator of a farm in handling, planting, drying, packing,
       packaging, processing, freezing, grading, storing, or delivering to storage or to market or
       to a carrier for transportation to market, in its unmanufactured state, any agricultural or
       horticultural commodity; but only if such operator produced more than one-half of the
       commodity with respect to which such service is performed;

       (B) In the employ of a group of operators of farms (other than a cooperative
       organization) in the performance of service described in subparagraph (A), but only if
       such operators produced all of the commodity with respect to which such service is
       performed. For purposes of this subparagraph, any unincorporated group of operators
       shall be deemed a cooperative organization if the number of operators comprising such
       group is more than 20 at any time during the calendar quarter in which such service is
       performed;

       (C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable
       with respect to service performed in connection with commercial canning or commercial
       freezing or in connection with any agricultural or horticultural commodity after its
       delivery to a terminal market for distribution for consumption; or

       (5) On a farm operated for profit if such service is not in the course of the employer's
       trade or business or is domestic service in a private home of the employer.




                                               106
       As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-
       bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or
       other similar structures used primarily for the raising of agricultural or horticultural
       commodities, and orchards.


       (ii) “Agriculture.” Section 203(f) of title 29, U.S.C. (§ 3(f) of the FLSA of 1938, as

codified, summarized as follows, defines “agriculture” to include:

       (f) * * * farming in all its branches and among other things includes the cultivation and
       tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any
       agricultural or horticultural commodities (including commodities as defined as
       agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees,
       fur-bearing animals, or poultry, and any practices (including any forestry or lumbering
       operations) performed by a farmer or on a farm as an incident to or in conjunction with
       such farming operations, including preparation for market, delivery to storage or to
       market or to carriers for transportation to market.


       (iii) “Agricultural commodity”. Section 1141j(g) of title 12, U.S.C.(§ 15(g) of the

Agricultural Marketing Act, as amended), summarized as follows, defines “agricultural

commodity” to include:

       (g) * * * in addition to other agricultural commodities, crude gum (oleoresin) from a
       living tree, and the following products as processed by the original producer of the crude
       gum (oleoresin) from which derived: Gum spirits of turpentine, and gum rosin, as defined
       in section 92 of Title 7.


       (iv) “Gum rosin”. Section 92 of title 7, U.S.C., summarized as follows, defines “gum

spirits of turpentine” and “gum rosin” as—

       (c) “Gum spirits of turpentine” means spirits of turpentine made from gum
       (oleoresin) from a living tree.


       *       *      *       *      *




                                               107
       (h) “Gum rosin” means rosin remaining after the distillation of gum spirits of

       turpentine.



       (3) “Of a temporary or seasonal nature”

       (i) “On a seasonal or other temporary basis”. For the purposes of this subpart, “of a

temporary or seasonal nature'' means “on a seasonal or other temporary basis”, as defined in the

ESA’s WHD’s regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural

Worker Protection Act (MSPA).

       (ii) MSPA definition. “On a seasonal or other temporary basis” means:


       Labor is performed on a seasonal basis, where, ordinarily, the employment
       pertains to or is of the kind exclusively performed at certain seasons or periods of
       the year and which, from its nature, may not be continuous or carried on
       throughout the year. A worker who moves from one seasonal activity to another,
       while employed in agriculture or performing agricultural labor, is employed on a
       seasonal basis even though he may continue to be employed during a major
       portion of the year.

*      *       *      *       *


       A worker is employed on “other temporary basis” where he is employed for a
       limited time only or his performance is contemplated for a particular piece of
       work, usually of short duration. Generally, employment which is contemplated to
       continue indefinitely is not temporary.

*      *       *      *       *


       “On a seasonal or other temporary basis” does not include the employment of any
       foreman or other supervisory employee who is employed by a specific
       agricultural employer or agricultural association essentially on a year round basis.

*      *       *      *       *




                                               108
        “On a seasonal or other temporary basis” does not include the employment of any
        worker who is living at his permanent place of residence, when that worker is
        employed by a specific agricultural employer or agricultural association on
        essentially a year round basis to perform a variety of tasks for his employer and is
        not primarily employed to do field work.

        (iii) “Temporary”. For the purposes of this subpart, the definition of “temporary” in

paragraph (c)(2)(ii) of this section refers to any job opportunity covered by this subpart where

the employer needs a worker for a position for a limited period of time, which shall be for less

than 1 year, unless the original temporary agricultural labor certification is extended based on

unforeseen circumstances, pursuant to § 655.110 of this part.


§ 655.101 Applications for temporary employment certification in agriculture.

        (a) Application Filing Requirements. (i) An employer that desires to apply for

certification of temporary employment of one or more nonimmigrant foreign workers must file a

completed DOL Application for Temporary Employment Certification form, including a job

offer. If the job opportunity contains multiple work locations within the same area of intended

employment and the area of intended employment is found in more than one NPC, the

application, if filed by mail, shall be filed with the NPC having jurisdiction over the place where

the work is contemplated to begin. The employer’s application will contain information related

to the job opportunity, which shall comply with the requirements of §§ 655.104 and 653.501 of

this chapter and the assurances required by § 655.105.

        (ii) If an association of agricultural producers, which uses agricultural labor or services,

files the application, the association shall identify whether it is either (i) the sole employer, (ii) a

joint employer with its employer-member employers, or (iii) the agent of its employer-members.

The association shall identify on the Application for Temporary Employment Certification, by

name and address, each member that will be an employer of H-2A workers. The association



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shall retain documentation substantiating the employer or agency status of the association and be

prepared to submit such documentation to the CO in the event of an audit examination.

       (iii) If an employer intends to be represented by an agent, the employer shall sign the

appropriate statement on the Application for Temporary Employment Certification that the agent

is representing the employer and the employer assumes full responsibility for the accuracy of any

representations made by the agent. The agent may accept for interview workers being referred to

the job and make hiring commitments on behalf of the employer.

       (iv) If an FLC intends to file the application, he/she must meet all of the requirements of

the definition of “employer” in § 655.100(b), and comply with all the assurances, guarantees, and

other requirements contained in this part and in part 653, subpart F, of this chapter. The FLC

must have a place of business (physical location) in the United States to which U.S. workers may

be referred. If an FLC files an application, H-2A workers employed by the FLC may not

perform services for an agricultural employer unless the FLC has filed a confirmation of the

agricultural employer’s compliance with the housing and transportation obligations, as outlined

in § 655.106, with the OFLC, for each agricultural employer listed on the application. The FLC

shall retain a copy of the compliance certificate.

       (b) Filing. The employer may complete the Application for Temporary Employment

Certification and send it by U.S. Mail or private mail courier to the appropriate NPC. The

Department shall publish a Notice in the Federal Register identifying the address(es), and any

future address changes, to which paper applications must be mailed, and shall also post these

addresses on the DOL Internet Web site at http://www.foreignlaborcert.doleta.gov/. The form

must bear the original signature of the employer (or that of the employer's authorized agent or

representative) at the time it is submitted.




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       (c) Timeliness. A completed Application for Temporary Employment Certification is

not required to be filed with the appropriate NPC more than forty-five (45) calendar days before

the date of need.



§ 655.102 Required pre-filing recruitment.

       (a) Time of Filing of Application. An employer may not file an Application for

Temporary Employment Certification before all of the pre-filing recruitment steps set forth in

this section have been fully satisfied. An employer may file earlier than 45 days prior to the date

of need, but is not required to do so.

       (b) General Attestation Obligation. An employer must document recruitment efforts on

the application form and attest to performing all necessary steps of the recruitment process as

specified in this section and having rejected any eligible U.S. workers who have applied only for

lawful reasons. In addition, the employer shall attest that it will continue to cooperate with the

SWA by accepting referrals of all eligible U.S. workers who apply (or on whose behalf an

application is made) for the job opportunity until the H-2A workers depart for the place of work,

or 3 days prior to the first date the employer requires the services of the H-2A workers,

whichever is later, and then preparing a written recruitment report for submission to the CO in

the event of an audit examination.

       (c) Retention of documentation. An employer filing an Application for Temporary

Employment Certification must maintain documentation of its advertising and recruitment efforts

as required in this subpart and be prepared to submit this documentation in response to a Notice

of Deficiency from the CO prior to rendering a Final Determination or in the event of an audit

examination. The documentation required in this section to be retained by the employer must be




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retained for a period of no less than 5 years from the date of the certification or, if such

application was denied, no less than 5 years from the date of notification from the Department of

such denial.

       (d) Positive Recruitment Steps. An employer filing an application must (1) post a job

order with the SWA serving the area of intended employment, (2) run three print advertisements

(one of which must be on a Sunday, except as outlined in paragraph (g) of this section), (3)

contact former U.S. employees who were employed within the last year (except those who were

dismissed for cause or who abandoned the worksite); and (4) based on an annual determination

made by the Secretary, as described in paragraph (i), recruit in any States currently designated as

States of traditional or expected labor supply with respect to the State in which the employer’s

work is to be performed.

       (e) Job Order. The employer shall place an active job order, consistent with part 653,

subpart F, of this chapter, with the SWA serving the area of intended employment no earlier than

120 calendar days and no later than 75 calendar days before the date of need for intrastate and

interstate clearance and begin recruitment of U.S. workers. For an application filed by an

association of agricultural employers, the SWA shall prepare a single job order in the name of

the association on behalf of all employer-members named in the application. If the job

opportunity contains multiple work locations within the same area of intended employment and

the area of intended employment is found in more than one State, the employer shall place a job

order with the SWA having jurisdiction over the place where the work is contemplated to begin.

Documentation of this step shall be satisfied by maintaining a copy of the SWA job order

downloaded from the SWA Internet job listing site on the first day of posting, a copy of the job




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order provided by the SWA with the start date of posting, or other proof of publication from the

SWA containing the text of the job order on the first day of posting.

            (1) The job order contents submitted by the employer to the SWA must satisfy all the

requirements for newspaper advertisements contained in § 655.103 and the adverse effect

requirements set forth at § 655.104. In the job order, the SWA shall disclose that only eligible

workers shall be referred and list the name of the employer and location(s) of work, or in the

event that an association is serving as the employer, a statement indicating that the name and

location of each member of the association can be obtained through the SWA.

            (2) Unless otherwise directed by the CO, the SWA shall keep the job order on its active

file for intrastate clearance until the date the H-2A worker(s) depart for the place of work, or

upon 3 days prior to the date the employer requires the services of the H-2A workers, whichever

is later.

            (f) Intrastate/Interstate Recruitment. Upon placing a job order for intrastate clearance,

the SWA receiving the job offer under paragraph (e) of this section shall promptly transmit, on

behalf of the employer, a copy of its active job order to all States listed in the application as

anticipated worksites. If the employer’s anticipated worksite location(s) is contained within the

jurisdiction of a single State, the SWA shall transmit a copy of its active job order to no fewer

than 3 States, which must include those States designated as traditional or expected labor supply

States (“out-of-state recruitment States”) for the State in which the employer’s work is to be

performed as defined in paragraph (i). Upon receipt of the active job order, each SWA shall

promptly prepare a job order for intrastate clearance within its respective State and begin

recruitment of eligible U.S. workers. For applications filed by an association of agricultural




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producers, each SWA shall prepare a single job order in the name of the association on behalf of

all employer-members duly named in the application.

        (1) The job order contents must satisfy all the requirements for newspaper advertisements

contained in § 655.103 and the adverse effect requirements set forth at § 655.104. In the job

order, the SWA shall disclose that only eligible U.S. workers shall be referred and list the name

of the employer and location(s) of work, or in the event that an association is serving as the

employer, a statement indicating that the name and location of each member of the association

can be obtained from the SWA to which the job offer was originally submitted under paragraph

(e) of this section.

        (2) Unless otherwise directed by the CO, the SWA shall keep the job order on its active

file for intrastate clearance until and only until the date the H-2A worker(s) depart for the place

of work, or 3 days prior to the date the employer requires the services of the H-2A workers,

whichever is later. Each of the SWAs to which the job order was referred shall refer back to the

SWA to which the job offer was originally submitted under paragraph (e) of this section each

eligible U.S. worker who applies (or on whose behalf an application is made) for the job

opportunity.

        (g) Newspaper Advertisements.

        (1) Within the same period of time as the job order is being circulated by the SWA(s) for

interstate clearance under paragraph (f) of this section, the employer shall place an advertisement

on 3 separate days, which may be consecutive, one of which is to be a Sunday advertisement

(except as provided in paragraph (g)(2) of this section), in a newspaper of general circulation

serving the area of intended employment, which may be a daily local newspaper, that is most

appropriate to the occupation and the workers likely to apply for the job opportunity and most




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likely to bring responses from able, available, qualified, and eligible U.S. workers. The first

newspaper advertisement must be printed no earlier than 120 calendar days and no later than 75

calendar days before the date of need.

       (2) If the job opportunity is located in a rural area that does not have a newspaper with a

Sunday edition, the employer shall use, in place of a Sunday edition advertisement, the regularly

published edition with the widest circulation in the area of intended employment.

       (3) The newspaper advertisements must satisfy the requirements under § 655.103 and the

adverse effect requirements set forth at § 655.104. Documentation of this step shall be satisfied

by maintaining copies of newspaper pages (with date of publication and full copy of ad), tear

sheets of the pages of the publication in which the advertisements appeared, or other proof of

publication containing the text of the printed advertisements and the dates of publication

furnished by the newspaper.

       (4) If the use of a professional, trade or ethnic publication is more appropriate to the

occupation and the workers likely to apply for the job opportunity than the use of a general

circulation newspaper and is the most likely source to bring responses from able, willing,

qualified, and available U.S. workers, the employer may use a professional, trade or ethnic

publication in place of two newspaper advertisements, but shall not replace the Sunday

advertisement, or the substitute outlined in (g)(2), as appropriate.

       (h) Contact with former U.S. workers. Within the same period of time as the job offer is

being circulated by the SWA(s) for intrastate/interstate clearance under paragraph (f) of this part,

the employer must contact by mail former U.S. workers (except those who were dismissed for

cause or who abandoned the worksite) employed by the employer in the occupation at the place

of employment during the previous year and solicit their return to the job. Such contact can be




                                                 115
documented by providing copies of official correspondence signed and dated by the employer

demonstrating that the workers were contacted and either unable or unwilling to return to the job

or non-responsive to the employer’s request.

       (i) Additional positive recruitment.

(1) Each year, the Secretary shall make a determination with respect to each State whether there

are other States in which there are located a significant number of able and qualified workers

who, if recruited, would be willing to make themselves available for work in that State. Such

determination shall be based on information provided by State agencies or by other sources

within the 120 days preceding the determination, and shall take into account the success of recent

efforts by out-of-state employers to recruit in that State. The Secretary shall not designate a

State as a State of traditional or expected labor supply with respect for any other State if the State

has a significant number of local employers that are recruiting for U.S. workers for the same

types of occupations. The Secretary’s annual determination as to which other States, if any,

applicants from each State must recruit in shall be published in the Federal Register and made

available through the ETA Web site.

       (2) Each employer shall be required to engage in positive multistate recruitment efforts in

those States, if any, that the Secretary has designated as out-of-state recruitment States for the

State in which the employer’s work is to be performed. Such recruitment shall consist of one

newspaper advertisement in each State so designated, published within the same period of time

as the newspaper advertisements under paragraph (g) of this section, which must satisfy the

requirements under § 655.103 and the adverse effect requirements set forth at § 655.104.

       (3) The obligation to engage in such positive recruitment shall terminate on the date H-

2A workers depart for the employer's place of work.




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        (j) Referrals of U.S. workers.

        (1) SWAs shall refer for employment only those individuals whom they have verified are

eligible U.S. workers.

        (k) Recruitment Report. No earlier than 60 calendar days before the date of need the

employer must prepare, sign, and date a written recruitment report. The recruitment report must

be submitted with the Application for Temporary Labor Certification. The recruitment report

must:

        (1) Identify each recruitment source by name;

        (2) State the name and contact information of each U.S. worker who applied or was

referred to the job opportunity up to the date of the preparation of the recruitment report for

consideration by the employer, and the disposition of each U.S. worker who applied or was

referred to the job opportunity;

        (3) If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers

who applied for the position.

        (4) The employer shall retain resumes of (if available), and evidence of contact with,

each U.S. worker who applied or was referred to the job opportunity. Such resumes and

evidence of contact shall be retained as part of the recruitment report for a period of no less than

five years and must be provided in response to a Notice of Deficiency from the CO prior to

rendering a Final Determination or in the event of an audit.

        (5) The employer shall update the recruitment report within 48 hours of the date the H-

2A workers depart for the place of work, or 3 days prior to the date the employer requires the

services of the H-2A workers, whichever is later. This supplement to the recruitment report shall

list the name(s) and contact information of any additional U.S. workers who applied or were




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referred to the job opportunity, and list the disposition of each U.S. worker who applied or was

referred to the job opportunity; explaining, if applicable, the lawful job-related reason(s) for not

hiring any U.S. workers who applied or who were referred. The employer must sign and date

this supplement to the recruitment report and retain it for a period of no less than 5 years. The

supplement to the recruitment report must be provided in the event of an audit.



§ 655.103 Advertising requirements.

       All advertising conducted to satisfy the required recruitment steps under § 655.102 before

filing the Application for Temporary Employment Certification must meet the adverse effect

requirements set forth at § 655.104 and disclose the following information:

       (a) Identify the employer’s name and location(s) of work, or in the event that an

association is serving as the employer, a statement indicating that the name and location of each

member of the association can be obtained from the SWA;

       (b) Indicate the geographic area of employment with enough specificity to apprise

applicants of any travel requirements or where applicants will likely have to reside to perform

the services or labor;

       (c) Describe the job opportunity with particularity to apprise U.S. workers of services or

labor to be performed for which certification is sought and the duration of the job opportunity;

       (d) Identify the wage offer, or in the event that an association is serving as the employer,

the range of applicable wage offers and a statement indicating that the rate applicable to each

member can be obtained from the SWA;

       (e) Give the three-fourths guarantee described in § 655.104(h)(3)(i);




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        (f) If applicable, state that work tools, supplies, and equipment will be provided without

cost to the worker;

        (g) State that housing will be made available at no cost to workers who cannot

reasonably return to their permanent residence at the end of the day;

        (h) If applicable, state that transportation and subsistence expenses to the worksite will

be provided by the employer;

        (i) Indicate the position is temporary and the total number of job openings the employer

intends to fill;

        (j) Contain terms and conditions of employment which are not less favorable than those

subsequently offered to the foreign worker(s); and

        (k) Direct applicants to report or send resumes to the SWA for referral to the employer;

and

        (l) Contact information for the SWA and the job order number.



§ 655.104 Contents of Job Offers

        (a) Preferential treatment of aliens prohibited. The employer's job offer shall offer no

less than the same benefits, wages, and working conditions that the employer is offering, intends

to offer, or will provide to H-2A workers. Except where otherwise permitted under this section,

no job offer may impose on U.S. workers any restrictions or obligations that will not be imposed

on the employer's H-2A workers.

        (b) No less than minimum offered. The job duties and requirements specified in the job offer

shall be consistent with the normal and accepted duties and requirements of non-H-2A employers in

the same or comparable occupations and crops in the area of intended employment and shall not




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require a combination of duties not normal to the occupation. The employer cannot offer less than the

minimum wages, benefits and working conditions that are required by paragraph (a) of this section.

       (c) Minimum benefits, wages, and working conditions. Except when higher benefits,

wages or working conditions are required by the provisions of paragraph (a) of this section,

every job offer accompanying an H-2A application must include each of the minimum benefit,

wage, and working condition provisions listed in paragraphs (d) through (i) of this section.



       (d) Housing. (1) Obligation to Provide Housing. The employer shall provide housing to

those workers who are not reasonably able to return to their permanent residence within the same day

through one of the following means:

       (i) Employer-owned housing. Employer-owned housing that meets the full set of DOL OSHA

standards set forth at 29 CFR 1910.142, or the full set of standards at §§654.404–654.417 of this

chapter, whichever are applicable pursuant to § 654.401.

       (ii) Rental and/or public accommodations. Rental and/or public accommodations or other

substantially similar class of habitation which meets applicable local standards for such housing. In

the absence of applicable local standards, State standards shall apply. In the absence of applicable

local or State standards, DOL OSHA standards at 29 CFR 1910.142 shall apply. Any charges for

rental housing shall be paid directly by the employer to the owner or operator of the housing. When

such housing is to be supplied by an employer, the employer shall document to the satisfaction of the

CO that the housing complies with the applicable Federal housing standards.

       (iii) Housing voucher. Except where the Governor of the State has certified that there is

inadequate housing available in the area of intended employment for migrant farm workers and H-2A




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workers seeking temporary housing while employed in agricultural work, the employer may satisfy the

requirement to provide housing by furnishing the worker a housing voucher provided that:

        (A) The employer has verified that housing meeting applicable standards is available for the

period during which the work is to be performed, within a reasonable commuting distance of the place

of employment, for the amount of the voucher provided, and that the voucher is useable for that

housing;

        (B) Upon the request of a worker seeking assistance in locating housing for which the voucher

will be accepted, the employer shall make a good faith effort to assist the worker in identifying,

locating and securing housing in the area of intended employment; and

        (C) Payment for the housing shall be made with a housing voucher, or such other means, that

is not redeemable for cash by the employee to a third party.

        (D) The Governor’s certification will be valid for a period of 3 years from the date of the

certification.



        (2) Standards for range housing. Housing for workers principally engaged in the range

production of livestock shall meet standards of the DOL OSHA for such housing. In the absence of

such standards, range housing for sheepherders and other workers engaged in the range production of

livestock shall meet guidelines issued by ETA.

        (3) Deposit charges. Charges in the form of deposits for bedding or other similar incidentals

related to housing shall not be levied upon workers. However, employers may require workers to

reimburse them for damage caused to housing, bedding, or other property by the individual workers

found to have been responsible for damage which is not the result of normal wear and tear related to

habitation.




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       (4) Family housing. When it is the prevailing practice in the area of intended employment and

the occupation to provide family housing, family housing shall be provided to workers with families

who request it.

       (5) Housing inspection. In order to ensure that the housing provided by an employer

pursuant to this section meets the relevant standard:

       (i) An employer must make the required attestation at the time of filing the Application

for Temporary Employment Certification pursuant to § 655.105(e)(2).

       (ii) The employer must make a request to the SWA for a housing inspection no more than

75 days and no fewer than 60 days before the date of need.

       (iii) The determination that the housing meets the statutory criteria applicable to the type

of housing provided must take place prior to certification as outlined in § 218(c)(4) of the INA.

If the employer has attested and met all other criteria for certification, and the employer has

made a timely request for a housing inspection pursuant to this paragraph (d)(5), and the housing

inspection has not taken place by the statutory deadline of 30 days prior to date of need, the

certification shall not be withheld. The SWA shall in such cases inspect the housing prior to or

during occupation to ensure it meets applicable housing standards. If, upon inspection, the SWA

determines the supplied housing does not meet the applicable housing standards, the SWA shall

promptly provide written notification to the NPC for appropriate action, which may include, but

need not be limited to, referral to the ESA and where the violations is more than de minimis,

revocation of the temporary labor certification, and/or debarment.

       (6) Certified Housing that Becomes Unavailable. For situations in which housing

certified by the SWA later becomes unavailable for reasons outside the employer’s control, the

employer may substitute other rental or public accommodation housing that is in compliance




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with applicable housing standards and for which the employer is able to submit evidence of such

compliance. The employer must notify the SWA in writing of the change in accommodations

and the reason(s) for such change and provide the SWA evidence of compliance from the

appropriate local or State agency responsible for determining compliance with applicable local,

State or Federal safety and health standards. The SWA should make every effort to inspect such

accommodations prior to occupation but may also conduct inspections during occupation, to

ensure that they meet applicable housing standards. The SWA will notify the appropriate CO of

all housing changes and of the results of any housing inspections

       (e) Workers' compensation. The employer shall provide, at no cost to the worker and for

the entire time of the worker’s employment, insurance, under a State workers' compensation law

or otherwise, covering injury and disease arising out of and in the course of the worker's

employment that will provide benefits at least equal to those provided under the State workers'

compensation law, if any, for comparable employment. The employer shall retain for the full

period of record retention required (5 years from the date of adjudication of the application) the

name of the insurance carrier, the insurance policy number, and proof of insurance, or, if

appropriate, proof of State law coverage.


       (f) Employer-provided items. Except as provided below, the employer shall provide to

the worker, without charge or deposit charge, all tools, supplies, and equipment required to

perform the duties assigned. The employer may charge the worker for reasonable costs related to

the worker's refusal or negligent failure to return any property furnished by the employer or due

to such worker's willful damage or destruction of such property. Where it is a common practice

in the particular area, crop activity and occupation for workers to provide tools and equipment,




                                                123
with or without the employer reimbursing the workers for the cost of providing them, such an

arrangement will be permitted.


       (g) Meals. The employer either shall provide each worker with three meals a day or

shall furnish free and convenient cooking and kitchen facilities to the workers that will enable

the workers to prepare their own meals. Where the employer provides the meals, the job offer

shall state the charge, if any, to the worker for such meals. Until a new amount is set pursuant to

this paragraph (g), the charge shall not be more than $9.52 per day unless the CO has approved a

higher charge pursuant to § 655.114. Each year the charge allowed by this paragraph (g) will be

changed by the same percentage as the 12-month percent change in the Consumer Price Index

for All Urban Consumers for Food between December of the year just concluded and December

of the year prior to that. The annual adjustments shall be effective on the date of their publication

by the Department as a Notice in the Federal Register.


       (h) Transportation; daily subsistence--(1) Transportation to place of employment. If the

employer has not previously advanced such transportation and subsistence costs to the worker or

otherwise provided such transportation or subsistence directly to the worker by other means and

if the worker completes 50 percent of the work contract period, the employer shall pay the

worker for costs incurred by the worker for transportation and daily subsistence from the place

from which the worker has come to work for the employer to the place of employment. When it

is the prevailing practice of non-H-2A agricultural employers in the occupation in the area to do

so, or when such benefits are extended to H-2A workers, the employer shall advance the required

transportation and subsistence costs (or otherwise provide them) to workers. The amount of the

transportation payment shall be no less (and shall not be required to be more) than the most




                                                124
economical and reasonable common carrier transportation charges for the distances involved.

The amount of the daily subsistence payment shall be at least as much as the employer will

charge the worker for providing the worker with three meals a day during employment, but in no

event less than the amount permitted under paragraph (g) of this section.

         (2) Transportation from place of employment. If the worker completes the work

contract period, the employer shall provide or pay for the worker's transportation and daily

subsistence from the place of employment to the place from which the worker, disregarding

intervening employment, came to work for the employer, or, if the worker has contracted with a

subsequent employer who has not agreed in that contract to provide or pay in advance for the

worker's transportation and daily subsistence expenses from the employer's worksite to such

subsequent employer's worksite, the employer shall provide or pay for such expenses..

         (3) Transportation between living quarters and worksite. The employer shall provide

transportation between the worker's living quarters (i.e., housing provided or secured by the employer

directly or through a voucher pursuant to paragraph (d) of this section) and the employer's worksite

without cost to the worker, and such transportation will be in accordance with all applicable Federal,

State or local laws and regulations, and shall provide, at a minimum, the same vehicle safety standards,

driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR part 500. If

workers’ compensation is used to cover such transportation, in lieu of vehicle insurance, the employer

must either ensure that the workers’ compensation covers all travel or that vehicle insurance exists to

provide coverage for travel not covered by workers’ compensation. This paragraph (h) is applicable to

the transportation of workers eligible for housing, pursuant to paragraph (d) of this section.

       (i) Three-fourths guarantee. (1) Offer to worker. The employer shall guarantee to offer

the worker employment for a total number of work hours equal to at least three-fourths of the




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workdays of the total period during which the work contract and all extensions thereof are in

effect, beginning with the first workday after the arrival of the worker at the place of

employment or the advertised contractual first date of need, whichever is later, and ending on the

expiration date specified in the work contract or in its extensions, if any. For purposes of this

paragraph (i)(1), a workday shall mean the number of hours in a workday as stated in the job

order and shall exclude the worker's Sabbath and Federal holidays. The employer shall offer a

total number of hours to ensure the provision of sufficient work to reach the three-fourths

guarantee. The work hours must be offered during the work period specified in the work

contract during or any modified work contract period of at least the same duration to which the

worker and employer have mutually agreed and has been approved by ETA. The work contract

period can be shortened only with the approval of the Department. In the event the worker begins

working later than the specified beginning date of the contract, the guarantee period begins with

the first workday after the arrival of the worker at the place of employment, and continues until

the last day during which the work contract and all extensions thereof are in effect. Therefore,

if, for example a work contract is for a 10-week period, during which a normal workweek is

specified as 6 days a week, 8 hours per day, the worker would have to be guaranteed

employment for at least 360 hours (e.g., 10 weeks x 48 hours/week = 480-hours x 75 percent =

360). A worker may be offered more than the specified hours of work on a single workday. For

purposes of meeting the guarantee, however, the worker shall not be required to work for more

than the number of hours specified in the job order for a workday, or on the worker's Sabbath or

Federal holidays. However, all hours of work actually performed may be counted by the

employer in calculating whether the period of guaranteed employment has been met. If the

employer affords the U.S. or H-2A worker during the total work contract period less employment




                                                126
than that required under this paragraph (i)(1), the employer shall pay such worker the amount the

worker would have earned had the worker, in fact, worked for the guaranteed number of days.

       (2) Guarantee for piece-rate paid worker. If the worker will be paid on a piece rate basis, the

employer shall use the worker's average hourly piece rate earnings or the AEWR, whichever is higher,

to calculate the amount due under the guarantee.

       (3) Failure to work. Any hours the worker fails to work, up to a maximum of the number of

hours specified in the job order for a workday, when the worker has been offered an opportunity to do

so in accordance with paragraph (i)(1) of this section may be counted by the employer in calculating

whether the period of guaranteed employment has been met.

       (4) Obligation to provide housing and meals. Notwithstanding the three-fourths guarantee

contained in this section, employers are obligated to provide subsistence and, where appropriate,

transportation for each day of the contract period up until the day the H-2A workers depart for other

H-2A employment or depart to their place of permanent residence.

       (j) Records. (1) The employer shall keep accurate and adequate records with respect to the

workers' earnings, including but not limited to field tally records, supporting summary payroll records,

and records showing the nature and amount of the work performed; the number of hours of work

offered each day by the employer (broken out by hours offered both in accordance with and over and

above the three-fourths guarantee at paragraph (i)(3) of this section); the hours actually worked each

day by the worker; the time the worker began and ended each workday; the rate of pay (both piece rate

and hourly, if applicable); the worker's earnings per pay period; the worker's home address; and the

amount of and reasons for any and all deductions made from the worker's wages.

       (2) To assist in determining whether the three-fourths guarantee at paragraph (i)(3) of this

section has been met, if the number of hours worked by the worker on a day during the work contract




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period is less than the number of hours offered, as specified in the job opportunity for a work day, the

records shall state the reason or reasons therefor.

       (3) Upon reasonable notice, the employer shall make the records available, including field

tally records and supporting summary payroll records, for inspection and copying by representatives of

the Secretary of Labor, and by the worker and representatives designated by the worker; and

       (4) The employer shall retain the records for not less than 5 years after the completion of the

work contract.

       (k) Hours and earnings statements. The employer shall furnish to the worker on or before each

payday in one or more written statements the following information:

       (1) The worker’s total earnings for the pay period;

       (2) The worker’s hourly rate and/or piece rate of pay;

       (3) The hours of employment offered to the worker (broken out by offers in accordance with

and over and above the guarantee);

       (4) The hours actually worked by the worker;

       (5) An itemization of all deductions made from the worker’s wages; and

       (6) If piece rates are used, the units produced daily.

       (l) Rates of Pay. (1) If the worker will be paid by the hour, the employer shall pay the

worker at least the adverse effect wage rate in effect at the time the work is performed, the

prevailing hourly wage rate, or the legal Federal or State minimum wage rate, whichever is

highest, for every hour or portion thereof worked during a pay period; or

       (2)(i) If the worker will be paid on a piece rate basis and the piece rate does not result at

the end of the pay period in average hourly piece rate earnings during the pay period at least

equal to the amount the worker would have earned had the worker been paid at the appropriate




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hourly rate, the worker's pay shall be supplemented at that time so that the worker's earnings are

at least as much as the worker would have earned during the pay period if the worker had been

paid at the appropriate hourly wage rate for each hour worked; and the piece rate shall be no less

than the piece rate prevailing for the activity in the area of intended employment; and

       (ii) If the employer who pays by the piece rate requires one or more minimum

productivity standards of workers as a condition of job retention, such standards shall be

specified in the job offer and be no more than those normally required by other employers for the

activity in the area of intended employment.

       (m) Frequency of Pay. The employer shall state the frequency with which the worker

will be paid, which must be in accordance with the prevailing practice in the area of intended

employment, or at least twice monthly, whichever is more frequent.

       (n) Abandonment of employment or termination for cause. If the worker voluntarily

abandons employment before the end of the contract period, or is terminated for cause, and the

employer notifies the Department and DHS in writing or any other method specified not later

than 48 hours of such abandonment or termination, the employer will not be responsible for

providing or paying for the subsequent transportation and subsistence expenses of that worker

under paragraph (h) of this section, and that worker is not entitled to the “three-fourths

guarantee” (see paragraph (i) of this section).

       (o) Contract impossibility. If, before the expiration date specified in the work contract,

the services of the worker are no longer required for reasons beyond the control of the employer

due to fire, hurricane, or other Act of God that makes the fulfillment of the contract impossible,

the employer may terminate the work contract. Whether such an event constitutes a contract

impossibility will be determined by the Department. In the event of such termination of a




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contract, the employer shall fulfill the three-fourths guarantee at paragraph (i)(1) of this section

for the time that has elapsed from the start of the work contract to its termination. The employer

shall:

         (1) Offer to return the worker, at the employer's expense, to the place from which the

worker came to work for the employer,

         (2) Reimburse the worker the full amount of any deductions made from the worker's pay

by the employer for transportation and subsistence expenses to the place of employment, and

         (3) Pay the worker for any costs incurred by the worker for transportation and daily

subsistence to that employer’s place of employment. Daily subsistence shall be computed as set

forth in paragraph (h) of this section. The amount of the transportation payment shall be no less

(and shall not be required to be more) than the most economical and reasonable common carrier

transportation charges for the distances involved.

         (p) Deductions. The employer shall make those deductions from the worker's paycheck

required by law. The job offer shall specify all deductions not required by law which the

employer will make from the worker's paycheck. All deductions shall be reasonable.

         (q) Copy of work contract. The employer shall provide to the worker, no later than on

the day the work commences, a copy of the work contract between the employer and the worker.

The work contract shall contain all of the provisions required by paragraphs (a) through (p) of

this section. In the absence of a separate, written work contract entered into between the

employer and the worker, the required terms of the Application for Temporary Employment

Certification, including the job offer, shall be the work contract.



§ 655.105 Assurances and obligations of H-2A employers.




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       An employer seeking to employ H-2A foreign workers shall attest that it will abide by the

following conditions of this subpart. By so attesting, the employer makes each of the following

assurances:

       (a) The job opportunity is open to any U.S. worker regardless of race, creed, color,

national origin, age, sex, religion, handicap, or citizenship, and the employer conducted or will

conduct the required recruitment, in accordance with regulations, prior to filing the labor

certification application and was unsuccessful in locating qualified U.S. applicants for the job

opportunity for which certification is sought. Any U.S. workers who applied for the job were

rejected only for lawful, job-related reasons;

       (b) The employer is offering terms and working conditions normal to workers similarly

employed in the area of intended employment and which are not less favorable than those

offered to the H-2A worker(s) and are not less than the minimum terms and conditions required

by this subpart;

       (c) There is not, at the time the labor certification application is filed, a strike, lockout, or

work stoppage in the course of a labor dispute in the occupational classification at the place of

employment;

       (d) The employer will continue to cooperate with the SWA by accepting referrals of all

eligible U.S. workers who apply (or on whose behalf an application is made) for the job

opportunity until the H-2A workers depart for the place of work, or three days prior to the first

date on which the employer requires the services of the H-2A workers, whichever is later;

       (e) During the period of employment that is the subject of the labor certification

application, the employer will:




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        (1) Comply with applicable Federal, State and local employment-related laws and

regulations, including employment-related health and safety laws;

        (2) Provide housing to those workers who are not reasonably able to return to their

permanent residence within the same day, without charge to the worker, that complies with the

applicable local, State, or Federal standards and guidelines for housing; and, where applicable,

has requested a preoccupancy inspection of the housing and, if one has been conducted, received

certification;

        (3) Provide insurance, without charge to the worker, under a State workers’

compensation law or otherwise, that meets the requirements set forth at § 655.104(e).

        (4) Provide transportation in compliance with all applicable Federal, State or local laws

and regulations between the worker’s living quarters (i.e., housing provided by the employer

pursuant to § 655.104(d)) and the employer’s worksite without cost to the worker.

        (f) Upon the separation from employment of H-2A worker(s) employed under the labor

certification application, if such separation occurs prior to the end date of the employment

specified in the application, the employer will notify the Department and DHS in writing or any

other method specified of the separation from employment not later than 48 hours after such

separation is effective.

        (g) The offered wage rate is the highest of the adverse effect wage rate, the prevailing

wage rate, which may be a prevailing wage piece rate, or the legal Federal or State minimum

wage, and the employer will pay the offered wage during the entire valid period of the approved

labor certification.

        (h) The offered wage is not based on commission, bonuses, or other incentives, unless

the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals of




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exceeds the adverse effect wage rate, prevailing wage rate, which may be a prevailing wage

piece rate, or the legal Federal or State minimum wage, whichever is highest.

       (i) The job opportunity is a full-time temporary position, whose qualifications are

consistent with the normal and accepted qualifications required by non-H-2A employers in the

same or comparable occupations and crops in that they shall not require a combination of duties

not normal to the occupation,

       (j) The employer has not laid off and will not lay off any similarly employed U.S.

worker in the occupation that is the subject of the Application for Temporary Employment

Certification in the area of intended employment within the period beginning 75 days before the

date of need, except that such layoff shall be permitted where the employer also attests that it

offered the opportunity to the laid-off U.S. worker(s) and said U.S. worker(s) either refused the

job opportunity or were rejected for the job opportunity for lawful, job-related reasons.

       (k) The employer shall not intimidate, threaten, restrain, coerce, blacklist, or in any

manner discriminate against, and shall not cause any person to intimidate, threaten, restrain,

coerce, blacklist, or in any manner discriminate against, any person who has with just cause:

       (1) Filed a complaint under or related to § 218 of the INA (8 U.S.C. 1188), or this

subpart or any other DOL regulation promulgated pursuant to § 218 of the INA;

       (2) Instituted or caused to be instituted any proceeding under or related to § 218 of the

INA, or this subpart or any other DOL regulation promulgated pursuant to § 218 of the INA (8

U.S.C. 1188);

       (3) Testified or is about to testify in any proceeding under or related to § 218 of the INA

or this subpart or any other DOL regulation promulgated pursuant to § 218 of the INA;




                                                133
       (4) Consulted with an employee of a legal assistance program or an attorney on matters

related to § 218 of the INA or this subpart or any other DOL regulation promulgated pursuant to

§ 218 of the INA; or

       (5) Exercised or asserted on behalf of himself/herself or others any right or protection

afforded by § 218 of the INA, or this subpart or any other DOL regulation promulgated pursuant

to § 218 of the INA.

       (l) The employer shall not discharge any person for the sole reason of that person’s

taking any action listed in paragraphs (k)(1) through (k)(5) of this section.

       (m) All fees associated with processing the temporary labor certification will be paid in a

timely manner.

       (n) The employer will inform H-2A workers of the requirement that they leave the U.S.

at the end of the period certified by the Department or separation from the employer, whichever

is earlier, as required under § 655.111, unless the H-2A is being sponsored by another employer

and that employer has already filed and received a certified Application for Temporary

Employment Certification and has filed that certification in support of a petition to employ that

worker with DHS.

       (o) The employer has not sought or received payment of any kind for any activity related

to obtaining labor certification, including payment of the employer’s attorneys’ fees or domestic

recruitment costs, whether as an incentive or inducement to filing, or as a reimbursement for

costs incurred in preparing or filing the application or securing the H-2A workers, from the

employee or any other party, except when work to be performed by the H-2A worker in

connection with the job opportunity will benefit or accrue to the person or entity making the

payment, based on that person’s or entity’s established business relationship with the employer.




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In connection with this attestation, the employer is required to contractually forbid any foreign

labor contractor whom they engage in international recruitment of H-2A workers to seek or

receive payments from prospective employees. For purposes of this paragraph, payment

includes, but is not limited to, monetary payments, wage concessions (including deductions from

wages, salary, or benefits), kickbacks, bribes, or tributes, in kind payments, and free labor.

       (p) The applicant shall attest to whether it is a fixed-site employer, an agent or recruiter,

an FLC as defined by MSPA, or an association, and—in cases in which the filer is someone

other than a fixed-site employer—whether it is an employer as defined by these regulations with

respect to the H-2A workers sought.



§ 655.106 Assurances and obligations of Farm Labor Contractors.

       In addition to all the assurances and obligations listed in § 655.105, FLC applicants shall

also be required to:

       (a) Provide the MSPA certificate of registration number and expiration date;

       (b) Identify the farm labor contracting activities the FLC is authorized to perform;

       (c) Provide for each fixed-site agricultural business to whom the FLC will provide

workers, the name and location of the fixed-site agricultural business, the approximate beginning

and ending dates of when the FLC will be providing the workers, and a description of the crops

and activities the workers will perform;

       (d) Provide proof of its ability to discharge financial obligations under the H-2A program

by attesting that it has obtained a surety bond as required by 29 CFR 501.8, stating on the

application the name, address, phone number, and contact person for the surety, and providing

the amount of the bond and any identifying designation utilized by the surety for the bond;




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        (5) Attest that it has engaged in, or will engage in within the timeframes required by §

102, positive recruitment efforts in each location in which it has listed a fixed site agricultural

business;

       (6) Attest that it has obtained from each fixed site agricultural business that will provide

housing or transportation to the workers a certificate of compliance regarding the following:

       (i) All housing utilized by H-2A workers and owned and/or operated by the fixed site

agricultural business complies with the applicable local, State or Federal standards and

guidelines for such housing.

       (ii) All transportation between the H-2A workers’ living quarters and the worksite that is

provided by the fixed site agricultural business complies with all applicable Federal, State, or

local laws and regulations and shall provide, at a minimum, the same vehicle safety standards,

driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR part 500.



§ 655.107 Receipt and processing of applications.

       (a) Processing. (1) Receipt. Upon receipt of the application, the CO will promptly

review the application for completeness and compliance with the requirements of the program as

outlined under paragraph (2) of this section.

       (2) Review. Each Application for Temporary Employment Certification will be

substantively reviewed for compliance with the criteria for certification, and the CO will make a

determination to certify, deny, or issue a Notice of Deficiency prior to making a Final

Determination on the application. “Criteria for Certification,” as used in this part, shall include,

but not be limited to, the nature of the employer’s need for the agricultural services or labor to be

performed is temporary; all assurances and obligations outlined in §655.105 in this part;




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compliance with the timeliness requirements as outlined in § 655.102 of this part; and a lack of

technical keyboarding or other errors in completing the application prior to submission, which

would make the application otherwise non-certifiable.

       (3) Notice of Deficiencies. If the CO determines the employer has made all necessary

attestations and assurances sufficient to reflect compliance with the assurances and obligations

related to the recruitment of U.S. workers, but the application still fails to comply with one or

more of the criteria for certification as outlined under paragraph (a)(2) of this section, the CO

will promptly notify the employer (by means normally assuring next day delivery) within 7

calendar days with a copy to the SWA serving the area of intended employment of any

deficiencies.

       (4) The notice shall:

       (i) State the reason(s) why the application is unacceptable for temporary labor

certification, citing the relevant regulatory standard(s);

       (ii) Offer the applicant an opportunity for submitting a modified application within 5

business days, stating the modification is needed for the CO to accept the application for

consideration;

       (iii) State that the CO’s determination on whether to grant or deny the Application for

Temporary Employment Certification will be made no later than 30 calendar days before the date

of need, provided that the employer submits the requested modification to the application within

5 business days and in a manner specified by the CO.

       (iv) Offer the employer an opportunity to request an expedited administrative review of

or a de novo administrative hearing before an administrative law judge of the non-acceptance.

The notice shall state that in order to obtain such a review or hearing, the employer, within five




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business days of the notice, shall file by facsimile (fax), telegram, or other means normally

assuring next day delivery, a written request to the Chief Administrative Law Judge of the DOL

(giving the address) and simultaneously serve a copy to the CO. The notice shall also state that

the employer may submit any legal arguments that the employer believes will rebut the basis of

the CO’s action; and

       (v) State that if the employer does not request an expedited administrative judicial

review or a de novo hearing before an administrative law judge within the 5 business days no

further consideration of the employer’s application for temporary employment certification under

the H-2A classification will be made by a Department official.

       (5) Submission of Modified Applications. (i) Provided that the CO notifies the

employer of any deficiencies within the 7 calendar day timeframe set forth under paragraph

(a)(3) of this section, the date by which the CO’s Final Determination is required by statute to be

made will be postponed by 1 day for each day that passes beyond the 5 business day period

allowed under paragraph (a)(4)(ii) before an amended or modified application is filed.

       (ii) In circumstances where the employer submits an amended or modified application as

required by the CO, and the CO approves the amended or modified application, the CO shall not

deny the application based solely on the fact that it now does not meet the timeliness

requirements for filing applications.

       (iii) If the amended or modified application is not approved, the CO shall deny the

application in accordance with the labor certification determination provisions set forth at

655.109.

       (6) Amendments to Applications. (i) Applications may be amended to increase the

number of workers requested in the initial application by not more than 20 percent (50 percent




                                                138
for employers of less than 10 workers) without requiring an additional recruitment period for

U.S. workers. Requests for increases above the percent prescribed, without additional

recruitment, may be approved by the CO only when the request is submitted in writing, the need

for additional workers could not have been foreseen, and the crops or commodities will be in

jeopardy prior to the expiration of an additional recruitment period.

       (ii) Applications may be amended to make minor changes in the period of employment,

as stated in the application, including the job offer, only when a written request is submitted to

the CO and approved in advance. In considering whether to approve the request, the CO shall

review the reason(s) for the request, determine whether each reason is justified, and take into

account the effect(s) of a decision to approve on the adequacy of the underlying test of the

domestic labor market for the job opportunity. If a request for a change in the start date of the

period of employment is made after workers have departed for the employer’s place of work, the

CO may only approve the change if the request is accompanied by a written assurance signed

and dated by the employer that all such U.S. workers will be provided housing and subsistence,

without cost to the U.S. workers, until work becomes available.

       (iii) Other minor technical amendments to the application, including the job offer, may

be requested if the CO determines the proposed amendment(s) are justified and will have no

significant effect upon the CO’s ability to make the labor certification determination required

under § 655.109.

       (7) Appeal procedures. With respect to either a notice of deficiency issued pursuant to

paragraph (a)(6) of this section or a notice of final determination issued pursuant to paragraph

(a)(8) of this section, if the employer timely requests an expedited administrative review or de




                                                139
novo hearing before an administrative law judge, the procedures set forth at § 655.115 shall be

followed.



§ 655.108 Offered Wage Rate

        (a) Highest wage. To comply with its obligation under § 655.105(g), an employer must

provide an offered wage rate that is the highest of the adverse effect wage rate, the prevailing

wage rate, which may be a prevailing wage piece rate, or the legal Federal or State minimum

wage.

        (b) Wage rate request. The employer shall request an offered wage rate from the NPC

having jurisdiction over the proposed area of intended employment before commencing any

recruitment under this subpart. If the job opportunity involves multiple work sites within the

same area of intended employment over which more than one NPC has jurisdiction, the

employer shall request an offered wage rate from the NPC having jurisdiction over the area

where the work is scheduled to begin.

        (c) Validity of wage rate. The employer must obtain an offered wage rate that is valid

either on the date recruitment begins or the date of filing the Application for Temporary

Employment Certification with the Department.

        (d) Wage offer. The employer must offer and advertise in its positive recruitment, as

outlined in § 655.103, for the position to all potential workers at a wage at least equal to the

wage rate obtained from the NPC.

        (e) Adverse effect wage rate. The adverse effect wage rate (AEWR) shall be based on

published wage data for the occupation, skill level, and geographical area from the BLS,

Occupational Employment Statistics (OES) survey. The NPC shall obtain wage information on




                                                 140
the AEWR using the Agricultural On-line Wage Library (AOWL) found on the Foreign Labor

Certification Data Center Web site (http://www.flcdatacenter.com/). This wage shall not be less

than the 2009 Federal minimum wage of $7.25.

           (f) Wage determination. The NPC must enter its wage determination on the form it uses

for these purposes, indicate the source, and return the form with its endorsement to the employer.

The employer must offer this wage (or higher) to both its U.S. and H-2A workers.



§ 655.109 Labor certification determinations.

           (a) COs. The Administrator, OFLC, is the DOL National CO. The Administrator and

the CO(s) in the NPC(s), by virtue of delegation from the Administrator, have the authority to

certify or deny applications for temporary employment certification under the H-2A

nonimmigrant classification. If the Administrator has directed that certain types of temporary

labor certification applications or specific applications under the H-2A nonimmigrant

classification be handled by the National OFLC, the Director(s) of the ETA NPC(s) shall refer

such applications to the Administrator.

           (b) Determination. No later than 30 calendar days before the date of need, as identified

in the Application for Temporary Employment Certification, except as provided for under

§ 655.107(a)(7) of this part for amended or modified applications, or applications not otherwise

meeting certification criteria by that date, the CO makes a determination either to grant or deny

the Application for Temporary Employment Certification, and will grant the application if and

only if:

           (1) The employer has properly attested that it has met the requirements of this subpart.

           (2) The nature of the employer’s need is temporary or seasonal.




                                                  141
         (3) The application was timely filed with the Department.

         (4) The job opportunity does not contain duties, requirements or other conditions that

preclude consideration of U.S. workers or that otherwise inhibit their effective recruitment for

the temporary job opportunity. In making this determination, the following requirements shall

apply:

         (i) The job opportunity is not vacant because the former occupant(s) is or are on strike or

locked out in the course of a labor dispute involving a work stoppage;

         (ii) The job is not at issue in a labor dispute involving a work stoppage;

         (iii) The job opportunity’s terms, conditions, and/or occupational environment are not

contrary to Federal, State, or local law(s);

         (iv) The employer has a location within the U.S. to which domestic workers can be

referred and hired for employment;

         (v) The employer is paying the highest of the adverse effect wage rate, the prevailing

wage rate, which may be a prevailing wage piece rate, or the legal Federal or State minimum

wage for the job to be performed; and

         (vi) The requirements of the job opportunity are not unduly restrictive and do not

represent a combination of duties not normal to the occupation being requested for certification.

         (5) The employment of the H-2A worker(s) will not adversely affect the benefits, wages,

and working conditions of similarly employed U.S. workers.

         (c) Notification. The CO shall notify the employer in writing (either electronically or by

mail) of the labor certification determination.

         (d) Approved certification. If temporary labor certification is granted, the CO must send

the certified Application for Temporary Employment Certification and a Final Determination




                                                  142
letter to the employer, or, if appropriate, to the employer’s agent or attorney, with a copy to the

SWA serving the area of intended employment. The Final Determination letter shall notify the

employer to file the certified application and any other documentation required by USCIS with

the appropriate USCIS office and to continue to cooperate with the SWA by accepting all

referrals of eligible U.S. workers who apply (or on whose behalf an application is made) for the

job opportunity until the H-2A worker(s) depart for the place of work, or three days prior to the

first date the employer requires the services of the H-2A workers, whichever is later.

       (e) Denied certification. If temporary labor certification is denied, the Final

Determination letter will:

       (1) State the reasons the application is not accepted for consideration, citing the relevant

regulatory standards and/or special procedures;

       (2) If applicable, address the availability of U.S. workers in the occupation as well as the

prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the

occupation and/or any applicable special procedures.

       (f) Partial Certification. The CO may, in his/her discretion, and to ensure compliance

with all regulatory requirements, issue a partial certification, reducing either the period of need

or the number of H-2A workers being requested or both for certification, based upon information

the CO receives in the course of processing the temporary labor certification application, an

audit, or otherwise.

       (g) Payment of Processing Fees. A determination by the CO to grant an Application for

Temporary Employment Certification or grant amendments to a certified application pursuant to

§ 655.107(a)(6) shall include a bill for the required fees. Each employer (except joint employer

associations) of H-2A workers under the Application for Temporary Employment Certification




                                                143
shall pay in a timely manner a non-refundable fee upon issuance of the certification granting the

application (in whole or in part), as follows:


       (1) Amount. The application fee for each employer receiving a temporary agricultural

labor certification is $200 plus $100 for each H-2A worker certified under the Application for

Temporary Employment Certification. In the case of a joint employer association receiving a

temporary agricultural labor certification, each employer-member receiving a temporary

agricultural labor certification shall pay an application fee of $200 plus $100 for each H-2A

worker certified. Any amendments requested pursuant to § 655.107(a)(6) by the employer to a

temporary agricultural labor certification, which are received and processed by the appropriate

CO will be subject to an additional processing fee of $100. In circumstances where the CO

grants an amendment to increase the number of H-2A workers requested on the initial certified

application, the employer shall be subject to a fee of $100 for each additional H-2A worker

certified on the amended temporary agricultural labor certification. The fees shall be paid by

check or money order made payable to “United States DOL.” In the case of H-2A employers

that are members of a joint-employer association applying on their behalf, the aggregate fees for

all employers of H-2A workers under the application must be paid by one check or money order.


       (2) Timeliness. Fees received by the CO no more than 30 days after the date the

temporary labor certification is granted will be considered timely. Non-payment of fees shall be

considered a substantial program violation.


§ 655.110 Validity and scope of temporary labor certifications.

       (a) Validity Period. A temporary labor certification shall be valid for the duration of the

job opportunity for which certification is being requested by the employer. Except as provided



                                                 144
for under paragraph (c) of this section, the validity period shall be the beginning and ending

dates of certified employment, as listed on the Application for Temporary Employment

Certification. The beginning date of certified employment cannot be earlier than the date

certification was granted by the CO. The certification expires on the last day of authorized

employment.

       (b) Scope of Validity. Except as provided for under paragraphs (c) and (d) of this

section, a temporary labor certification is valid only for the number of H-2A workers, the area of

intended employment, the specific occupation and duties, the beginning and ending dates of

employment, and the employer(s) specified on the Application for Temporary Employment

Certification and may not be transferred from one employer to another.

       (c) Scope of Validity – Associations. (1) Certified Applications. If an association is

requesting temporary labor certification as a joint employer, the certified Application for

Temporary Employment Certification shall be granted jointly to the association and to each of its

employer members named on the application. Such workers may be transferred among its

certified employer members to perform work for which the temporary labor certification was

granted, provided the association controls the assignment of such workers and maintains a record

of such assignments. All temporary agricultural labor certifications to associations may be used

for the certified job opportunities of any of its employer members named on the application. If

an association is requesting temporary labor certification as a sole employer, the certified

Application for Temporary Employment Certification shall be granted to the association only.

       (2) Ineligible employer-members. Workers shall not be transferred or referred to an

association's employer member, if that employer member has been debarred.




                                                145
       (e) Extensions on Period of Employment. (1) Short-term extension. An employer who

seeks an extension of 2 weeks or less of the certified Application for Temporary Employment

Certification shall apply for such extension to DHS. If DHS grants such an extension, the

corresponding Application for Temporary Employment Certification shall be deemed extended

for such period as is approved by DHS.

       (2) Long-term extension. For extensions beyond the period which may be granted by

DHS pursuant to paragraph (d)(1) of this section, an employer, after 50 percent of the work

contract period has elapsed, may apply to the CO for an extension of the period of employment

on the certified Application for Temporary Employment Certification, for reasons related to

weather conditions or other external factors beyond the control of the employer (which may

include unforeseen changes in market conditions), provided that the employer's need for an

extension is supported in writing by the employer, with documentation showing that the

extension is needed and could not have been reasonably foreseen by the employer. The CO shall

grant or deny the request for extension of the period of employment on the Application for

Temporary Employment Certification based on available information, and shall notify the

employer of the decision on the request in writing. The CO shall not grant an extension where

the total work contract period, including past temporary labor certifications for the job

opportunity and extensions, would be 12 months or more, except in extraordinary circumstances.

The CO shall not grant an extension where the Application for Temporary Employment

Certification has already been extended by DHS pursuant to paragraph (d)(i) of this section.



§ 655.111 Required departure.




                                                146
        (a) Limit to worker’s stay. As defined further in DHS regulations, a temporary labor

certification shall limit the authorized period of stay for any H-2A worker whose admission is

based upon it. 8 CFR § 214.2(h). A foreign worker may not remain beyond the validity period

of any labor certification under which the H-2A worker is employed nor beyond separation from

employment, whichever occurs first, absent an extension or change of such worker’s status

pursuant to DHS regulations.

        (b) Notice to worker. Upon establishment of a program by DHS for registration of

departure, an employer must notify any H-2A worker starting work at a job opportunity for

which the employer has obtained labor certification that the H-2A worker, when departing the

United States by land at the conclusion of employment as outlined in paragraph (a) of this

section, must register such departure at the place and in the manner prescribed by DHS.



§ 655.112 Audits and Referrals.

        (a) Discretion. The Department shall, in its discretion, conduct audits of temporary labor

certification applications, regardless of whether the Department has issued a certification or

denial of the application.

        (b) Audit letter. In circumstances where an application is selected for audit, the CO shall

issue an audit letter. The audit letter will:

        (1) State the documentation that must be submitted by the employer;

        (2) Specify a date, no more than 30 days from the date of the audit letter, by which the

required documentation must be received by the CO; and

        (3) Advise that failure to comply with the audit process, including providing

documentation within the specified time period, may result in a finding by the CO to (i) revoke




                                                147
the labor certification and/or (ii) debar the employer from future filings of H-2A temporary labor

certification applications as outlined in § 655.118.

       (c) Supplemental information request. During the course of the audit examination, the

CO may request supplemental information and/or documentation from the employer in order to

complete the audit.

       (d) Audit violations. If, as a result of the audit or otherwise, the CO determines the

employer failed to produce required documentation, or determines a material misrepresentation

was made with respect to the application, or if the CO determines it is appropriate for other

reasons, the employer may be referred for revocation pursuant to § 655.117 and/or debarment

pursuant to § 655.118. The CO may determine to provide the audit report and underlying

documentation to DHS or another appropriate enforcement agency. With respect to any findings

that an employer may have discouraged an eligible U.S. worker from applying, or failed to hire,

discharged, or otherwise discriminated against an eligible U.S. worker, the CO shall refer those

matters to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair

Immigration Related Employment Practices.



§ 655.113 H-2A applications involving fraud or willful misrepresentation.

       (a) Referral for investigation. If possible fraud or willful misrepresentation involving an

Application for Temporary Employment Certification application is discovered by the CO or if

the CO and/or Administrator become aware the employer, or its attorney or agent (with respect

to an application) is the subject of a criminal indictment or information filed in a court, the

Administrator shall refer the matter to the DHS and the Department’s Office of the Inspector

General for investigation.




                                                 148
       (b) Continued processing. If a court finds an employer or agent not guilty of fraud or

willful misrepresentation, or if the Department of Justice decides not to prosecute an employer or

agent, the CO shall decide each pending temporary labor certification application on its merits

related to that employer or agent.

       (c) Terminated processing. If a court or the DHS determines that there was fraud or

willful misrepresentation involving an Application for Temporary Employment Certification, the

application is thereafter invalid, consideration of the application shall be terminated and the

Administrator shall return the application to the employer or agent with the reasons therefore

stated in writing.



§ 655.114 Petition for higher meal charges.

       (a) Filing petitions. Until a new amount is set pursuant to this paragraph (a), the CO may

permit an employer to charge workers up to $9.52 for providing them with three meals per day,

if the employer justifies the charge and submits to the CO the documentation required by

paragraph (b) of this section. In the event the employer's petition for a higher meal charge is

denied in whole or in part, the employer may appeal such denial. Such appeals shall be filed

with the Chief Administrative Law Judge. Administrative law judges shall hear such appeals

according to the procedures in 29 CFR part 18, except that the appeal shall not be considered as a

complaint to which an answer is required. The decision of the administrative law judge shall be

the final decision of the Secretary. Each year the maximum charge allowed by this paragraph (a)

will be changed by the same percentage as the 12 month percent change for the Consumer Price

Index for all Urban Consumers for Food between December of the year just concluded and

December of the year prior to that. The annual adjustments shall be effective on the date of their




                                                149
publication by the Administrator as a Notice in the Federal Register. However, an employer may

not impose such a charge on a worker prior to the effective date contained in the CO's written

confirmation of the amount to be charged.

       (b) Required documentation. Documentation submitted shall include the cost of goods

and services directly related to the preparation and serving of meals, the number of workers fed,

the number of meals served and the number of days meals were provided. The cost of the

following items may be included: food; kitchen supplies other than food, such as lunch bags and

soap; labor costs which have a direct relation to food service operations, such as wages of cooks

and restaurant supervisors; fuel, water, electricity, and other utilities used for the food service

operation; and other costs directly related to the food service operation. Charges for

transportation, depreciation, overhead and similar charges may not be included. Receipts and

other cost records for a representative pay period shall be retained and available for inspection by

the CO upon request for a period of one year.



§ 655.115 Administrative review and de novo hearing before an administrative law judge.

       (a) Administrative review. (1) Consideration. Whenever an employer has requested an

administrative review before an administrative law judge of a decision by the CO not to accept

for consideration an Application for Temporary Employment Certification, to deny an

Application for Temporary Employment Certification, or to revoke a certified Application for

Temporary Employment Certification the CO shall send a certified copy of the ETA case file to

the Chief administrative law judge by means normally assuring next-day delivery. The Chief

administrative law judge shall immediately assign an administrative law judge (which may be a

panel of such persons designated by the Chief Administrative Law Judge from the Board of




                                                 150
Alien Labor Certification Appeals established by 20 CFR part 656 of this chapter, but which

shall hear and decide the appeal as set forth in this section) to review the record for legal

sufficiency. The administrative law judge shall not remand the case and shall not receive

additional evidence.

          (2) Decision. Within 5 business days after receipt of the ETA case file the

administrative law judge shall, on the basis of the written record and after due consideration of

any written submissions from the parties involved or amici curiae, either affirm, reverse, or

modify the CO's decision by written decision. The decision of the administrative law judge shall

specify the reasons for the action taken and shall be immediately provided to the employer, CO,

the Administrator, and DHS by means normally assuring next-day delivery. The administrative

law judge's decision shall be the final decision of the Secretary and no further review shall be

given to the application or the determination by any Department official.

       (b) De novo hearing. (1) Request for hearing; conduct of hearing. Whenever an

employer has requested a de novo hearing before an administrative law judge of a decision by

the CO not to accept for consideration an Application for Temporary Employment Certification,

to deny an Application for Temporary Employment Certification, or to revoke a certified

Application for Temporary Employment Certification, the CO shall send a certified copy of the

ETA case file to the Chief Administrative Law Judge by means normally assuring next-day

delivery. The Chief Administrative Law Judge shall immediately assign an administrative law

judge (which may be a panel of such persons designated by the Chief Administrative Law Judge

from the Board of Alien Labor Certification Appeals established by 20 CFR part 656 of this

chapter, but which shall hear and decide the appeal as set forth in this section) to conduct the de




                                                 151
novo hearing. The procedures contained in 29 CFR part 18 shall apply to such hearings, except

that:

        (i) The appeal shall not be considered to be a complaint to which an answer is required;

        (ii) The administrative law judge shall ensure that, at the request of the employer, the

hearing is scheduled to take place within five business days after the administrative law judge's

receipt of the ETA case file; and

        (iii) The administrative law judge's decision shall be rendered within10 business days

after the hearing.

        (2) Decision. After a de novo hearing, the administrative law judge shall either affirm,

reverse, or modify the CO's determination, and the administrative law judge's decision shall be

provided immediately to the employer, CO, Administrator, and DHS by means normally

assuring next-day delivery. The administrative law judge's decision shall be the final decision of

the Secretary, and no further review shall be given to the application or the determination by any

Department official.



§ 655.116 Job Service Complaint System; enforcement of work contracts.

        Complaints arising under this subpart may be filed through the Job Service Complaint

System, as described in 20 CFR part 658, subpart E, of this chapter. Complaints which involve

worker contracts shall be referred by the SWA to the ESA for appropriate handling and

resolution, as described in 29 CFR part 501. As part of this process, the ESA may report the

results of its investigation to the Administrator for consideration of employer penalties or such

other action as may be appropriate.




                                                152
       Complaints alleging that an employer discouraged an eligible U.S. worker from applying,

failed to hire, discharged, or otherwise discriminated against an eligible U.S. worker, or

discovered violations involving the same, shall be referred to the U.S. Department of Justice,

Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment

Practices (OSC), in addition to any activity, investigation, and/or enforcement action taken by

ETA or an SWA. Likewise, if OSC becomes aware of a violation of these regulations, it shall

provide such information to the appropriate SWA and the CO.



§ 655.117 Revocation of approved labor certifications.

       (a) Basis for DOL revocation. The CO, in consultation with the Administrator, may

revoke a temporary agricultural labor certification approved under this subpart, if:

       (1) The CO finds that issuance of the temporary agricultural labor certification was not

justified based on criteria set forth under the INA and enumerated at 8 CFR 214.2(h)(5);

       (2) The CO finds that the employer violated the terms and conditions of the approved

temporary agricultural labor certification; or

       (3) Upon recommendation of the ESA WHD of the Department.

       (b) DOL procedures for revocation. (1) The CO shall send to the employer a Notice of

Intent to Revoke an approved temporary agricultural labor certification, which contains a

detailed statement of the grounds for the proposed revocation and the time period allowed for the

employer's rebuttal. The employer may submit evidence in rebuttal within 14 calendar days of

the date the notice is issued. The CO must consider all relevant evidence presented in deciding

whether to revoke the temporary agricultural labor certification.




                                                 153
       (2) If rebuttal evidence is not timely filed by the employer, the Notice of Intent to

Revoke shall become the final decision of the Secretary and take effect immediately at the end of

the 14-day window.

       (3) If, notwithstanding the employer’s timely filed rebuttal evidence, and if the CO

determines the temporary agricultural labor certification should be revoked, the CO shall

promptly notify the employer of this final determination and of the employer’s right to appeal.

The revocation takes effect immediately upon issuance of this notice and remains in place

pending the outcome of any subsequent appeal proceedings. The employer may file an

administrative appeal under § 655.115 within 10 calendar days after the date of revocation.

       (4) The CO will inform the employer of the CO’s final determination on the revocation

within 14 calendar days of receiving timely rebuttal evidence.

       (5) If the temporary agricultural labor certification is revoked, the CO will also send a

copy of the notification to DHS and DOS.



§ 655.118 Debarment.

       (a) No later than 2 years after an employer has substantially violated a material term or

condition of its temporary agricultural labor certification, the Administrator may on that basis

make a determination denying the employer and any successor in interest to the debarred

employer future labor certifications under this subpart for a period of up to 3 years from the date

of the determination.

       (b) For the purposes of this section, a substantial violation includes, but is not limited to:

       (1) One or more acts of commission or omission on the part of the employer or the

employer's agent which:




                                                154
       (i) Are significantly injurious to the wages, benefits, or working conditions of 10 percent

or more of an employer's U.S. or H-2A workforce or of a substantial number of U.S. workers

similarly employed in the area of intended employment;

       (ii) Reflect a significant failure to offer employment to all qualified domestic workers

who applied for the job opportunity for which certification was being sought, except for lawful

job-related reasons;

       (iii) Reflect a willful failure to comply with the employer's obligations to recruit domestic

workers as set forth in this subpart;

       (iv) Reflect a failure to comply with one or more sanctions or remedies imposed by the

ESA for violation(s) of obligations found by that agency (if applicable), or with one or more

decisions or orders of the Secretary or a court pursuant to § 218 of the INA (8 U.S.C. 1188), this

subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations);

       (v) Reflect action(s) impeding an investigation of an employer pursuant to § 218 of the

INA (8 U.S.C. 1188), this subpart, or 29 CFR part 501 (ESA enforcement of contractual

obligations); or

       (vi) Reflect the employment of an H-2A worker outside the area of intended

employment, or in an activity not listed on the job order, or after the expiration of the job order

and any approved extension;

       (2) The employer's failure to pay the necessary fee in a timely manner; or

       (3) Fraud involving the Application for Temporary Employment Certification or the

employer making a material misrepresentation of fact during the application process.

       (c) The Notice of Debarment shall be in writing; shall state the reason for the debarment

finding, including a detailed explanation of the grounds for and the duration of the debarment,




                                                155
and shall identify administrative appeal rights under §655.115 and a timeframe under which such

rights must be exercised. The debarment shall take effect on the start date identified in the

Notice of Debarment, unless an administrative appeal request for review is properly filed. The

timely filing of an administrative appeal stays the debarment pending the outcome of those

appeal proceedings.

       (d) Debarment involving members of associations. If, after consultation with the

Administrator, the CO determines a substantial violation has occurred, and if an individual

producer member of a joint employer association is determined to have committed the violation,

the determination to deny future labor certifications under this subpart for a period of up to three

years from the date of the determination shall apply only to that member of the association unless

the Administrator determines that the association or other association members participated in,

had knowledge of, or had reason to know of the violation, in which case the debarment shall be

invoked against the complicit association or other association members as well.

       (e) Debarment involving associations acting as joint employers. If, after consultation

with the Administrator, the CO determines a substantial violation has occurred, and if an

association acting as a joint employer with its members is determined to have committed the

violation, the determination to deny future labor certifications under this subpart for a period of

up to three years from the date of the determination shall apply only to the association, and shall

not be applied to any individual producer member of the association unless the Administrator

determines that the member participated in, had knowledge of, or reason to know of the

violation, in which case the debarment shall be invoked against any complicit association

members as well. Associations debarred from the H-2A temporary labor certification program

will not be permitted to continue to file as joint employers with their members.




                                                156
       (f) Debarment involving associations acting as sole employers. If the Administrator

determines a substantial violation has occurred, and if an association acting as a sole employer is

determined to have committed the violation, the determination to deny future labor certifications

under this subpart for a period of up to three years from the date of the determination shall apply

only to the association and any successor in interest to the debarred association.



       6. Subpart C—Labor Certification Process for Logging Employment and Non-H-2A

Agricultural Employment is stricken in its entirety and is replaced with:



Subpart C—[Reserved]



Part 501 - ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY

ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE

IMMIGRATION AND NATIONALITY ACT



       7. The authority citation for part 501 reads as follows:

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.



       8. In part 501 all references to “Section 216” are revised to read “Section 218”.



       9. Section 501.0 is amended by revising the second sentence to read as follows:



§ 501.0 Introduction.




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* * * These regulations are also applicable to the employment of U.S. workers newly hired by

employers of H-2A workers in the occupations during the period of time set forth in the labor

certification approved by ETA as a condition for granting H-2A certification, including any

extension thereof. * * *



       10. Section 501.1 is amended by revising paragraphs (b) and (c) to read as follows:



§ 501.1 Purpose and scope.

*      *       *      *       *

 (b) Role of the ETA. The issuance and denial of labor certification under section 218 of the

INA has been delegated by the Secretary of Labor to the Employment and Training

Administration (ETA). In general, matters concerning the obligations of an employer of H-2A

workers related to the labor certification process are administered and enforced by ETA.

Included within ETA’s jurisdiction are issues such as whether U.S. workers are available,

whether positive recruitment has been conducted, whether there is a strike or lockout, the

methodology for establishing adverse effect wage rates, whether workers’ compensation

insurance has been provided, and other similar matters. The regulations pertaining to the

issuance and denial of labor certification for temporary alien workers by the ETA are found in

Title 20 CFR, part 655.

 (c) Role of ESA, Wage and Hour Division. Section 218(g)(2) of the INA provides that--



       [T]he Secretary of Labor is authorized to take such actions including imposing

       appropriate penalties and seeking appropriate injunctive relief and specific performance




                                               158
       of contractual obligations, as may be necessary to assure employer compliance with

       terms and conditions of employment under this section.



Certain investigatory, inspection, and law enforcement functions to carry out the provisions of

section 218 of the INA have been delegated by the Secretary of Labor to the ESA (ESA), Wage

and Hour Division. In general, matters concerning the obligations under a work contract

between an employer of H-2A workers and the H-2A workers and U.S. workers hired in

corresponding employment by H-2A employers are enforced by ESA. Included within the

enforcement responsibility of ESA, Wage and Hour Division are such matters as the payment of

required wages, transportation, meals, and housing provided during the employment. The Wage

and Hour Division has the responsibility to carry out investigations, inspections, and law

enforcement functions and in appropriate instances impose penalties, recommend revocation of

existing certification(s), debar from future certifications, and seek injunctive relief and specific

performance of contractual obligations, including recovery of unpaid wages (either directly from

the employer or in the case of an FLC, from the FLC directly or from the insurer who issued the

surety bond to the FLC as required by 20 CFR part 655, subpart B).

*      *       *       *       *



       11. Section 501.2 is revised to read as follows:



§ 501.2 Coordination of intake between DOL agencies.

 Complaints received by ETA or any State Workforce Agency (SWA) regarding contractual H-




                                                 159
2A labor standards between the employer and the employee will be immediately forwarded to

the appropriate Wage and Hour Division office for appropriate action under these regulations.



       12. Section 501.3 is amended by revising paragraph (e) and the last paragraph of the

section to read as follows:



§ 501.3 Discrimination prohibited.

*      *       *       *      *

 (e) Consulted with an employee of a legal assistance program or an attorney on matters related

to section 218 of the INA, or to this subpart or any other Department regulation promulgated

pursuant to section 218 of the INA.



Allegations of discrimination in employment against any person will be investigated by the

Wage and Hour Division. Where the Wage and Hour Division has determined through

investigation that such allegations have been substantiated, appropriate remedies may be sought.

The Wage and Hour Division may assess civil money penalties, seek injunctive relief, and/or

seek additional remedies necessary to make the employee whole as a result of the discrimination,

as appropriate, and may initiate action to debar any such violator from future labor certification.

Complaints alleging discrimination against U.S. workers and immigrants based on citizenship or

immigration status will be forwarded by the Wage and Hour Division to the Department of

Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair

Employment Practices.




                                                160
          13. Section 501.4 is amended to read as follows:



§ 501.4 Waiver of Rights Prohibited.

    No person shall seek to have an H-2A worker, or other U.S. worker hired in corresponding

employment by an H-2A employer, waive rights conferred under Section 218 of the INA or

under these regulations.



          14. Section 501.5 is amended by revising paragraphs (b) and (d) to read as follows:



§ 501.5 Investigation authority of Secretary.

*         *      *      *       *

 (b) Failure to cooperate with an investigation. Where any employer using the services of an H-

2A worker does not cooperate with an investigation concerning the employment of H-2A

workers or U.S. workers hired in corresponding employment, the Wage and Hour Division shall

report such occurrence to ETA and may recommend that ETA revoke the existing certification,

and the Wage and Hour Division may debar the employer from future certification for up to three

years. In addition, the Wage and Hour Division may take such action as may be appropriate,

including the seeking of an injunction and/or assessing civil money penalties, against any person

who has failed to permit the Wage and Hour Division to make an investigation.

*         *      *      *       *

 (d) Report of Violations. Any person may report a violation of the work contract obligations of

section 218 of the INA or these regulations to the Secretary by advising any local office of the

State Workforce Agency, the ETA, the U.S. DOL’s Wage and Hour Division, or any other




                                                161
authorized representative of the Secretary. The office or person receiving such a report shall

refer it to the appropriate office of the U.S. DOL, Wage and Hour Division for the area in which

the reported violation is alleged to have occurred.



       15. Section 501.6 is revised to read as follows:



§ 501.6 Prohibition on interference with DOL officials.

 No person shall interfere with any official of the DOL assigned to perform an investigation,

inspection, or law enforcement function pursuant to the INA and these regulations during the

performance of such duties. The Wage and Hour Division will take such action as it deems

appropriate, including seeking an injunction to bar any such interference with an investigation

and/or assessing a civil money penalty therefor. In addition, the Wage and Hour Division will

report the matter to ETA, and the Wage and Hour Division may debar the employer from future

certification and/or may make a recommendation that the person’s existing labor certification be

revoked. (Federal statutes that prohibit persons from interfering with a Federal officer in the

course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114.)



       16. Add new section 501.8 to read as follows:

§ 501.8 Surety Bond

Farm Labor Contractors (FLCs) shall obtain a surety bond to assure compliance with the

provisions of this part and 20 CFR part 655 Subpart B for each labor certification being sought.

The FLC shall attest on the application for labor certification that such a bond meeting all the

requirements of this section has been obtained and shall provide on the labor certification




                                                162
application form information that fully identifies the surety, including the name, address and

phone number of the surety, and which identifies the bond by number or other identifying

designation.

 The bond shall be payable to the Administrator, Wage and Hour Division, U.S. DOL. It shall

obligate the surety to pay any sums owed to the Administrator, for wages and benefits owed to

H-2A and U.S. workers, based on a final decision finding a violation or violations of this part or

20 CFR part 655 subpart B for the labor certification the bond is intended to cover. The

aggregate liability of the surety shall not exceed the face amount of the bond. The bond shall be

written to cover liability incurred during the term of the period listed in the application for labor

certification made by the FLC, and shall be amended to cover any extensions of the labor

certification requested by the FLC. Surety bonds may not be canceled or terminated unless thirty

days’ notice is provided by the surety to the Administrator.



The bond shall be in the amount of $10,000 for a labor certification for which a FLC will employ

fewer than 50 employees and $20,000 for a labor certification for which a FLC will employ 50 or

more employees. The amount of the bond may be increased by the Administrator after notice

and an opportunity for hearing when it is shown that the amount of the bond is insufficient to

meet potential liabilities.



        17. Section 501.10 is amended by revising the introductory paragraph and paragraphs (d)

through (jj) to read as follows:




                                                 163
§ 501.10 Definitions.

 The definitions in (a) through (d) are set forth for purposes of this part. In addition, the

definitions in (e) through (jj) are promulgated at 20 CFR part 655.100(b)-(c), are utilized herein,

and are incorporated and set forth for informational purposes.

*        *      *       *      *

 (d) Work contract means all the material terms and conditions of employment relating to wages,

hours, working conditions, and other benefits, including those terms and conditions attested to by

the H-2A employer and required by the applicable regulations in subpart B of 20 CFR part 655,

Labor Certification for Temporary Agricultural Employment of H-2A Aliens in the United States

(H-2A Workers), and those contained in the Application for Temporary Employment

Certification and job offer under that subpart, which contract between the employer and the

worker may be in the form of a separate written document. In the absence of a separate written

work contract incorporating the required terms and conditions of employment, entered into

between the employer and the worker, the work contract at a minimum shall be the terms of the

job order included in the application for temporary labor certification, and shall be enforced in

accordance with these regulations.

    (e) Adverse effect wage rate (AEWR) means the minimum wage rate that the ETA Office of

Foreign Labor Certification Administrator has determined must be offered and paid to every H-

2A worker employed in a particular occupation and/or area to ensure that the wages of similarly

employed U.S. workers will not be adversely affected.

 (f) Agent means a legal entity or person, such as an association of agricultural employers, or an

attorney for an association, that (1) is authorized to act on behalf of the employer for temporary




                                                 164
agricultural labor certification purposes, and (2) is not itself an employer, or a joint employer, as

defined in this section.

 (g) Agricultural association means any non-profit or cooperative association of farmers,

growers, or ranchers, incorporated or qualified under applicable state law, that recruits, solicits,

hires, employs, furnishes, or transports any H-2A worker. Agricultural associations may act as

agents of an employer for purposes of filing an H-2A temporary labor certification application.

 (h) Agricultural employer means any person who owns or operates a farm or ranch, or

otherwise engages in agriculture as defined in this subpart, and who either recruits, solicits, hires,

employs, furnishes, or transports any H-2A worker. Agricultural employers may file H-2A

applications either directly or through their agents or other legal representatives.

 (i) Application for Temporary Employment Certification means the form submitted by an

employer to secure a temporary agricultural labor certification determination from the DOL.

 (j) Department of Homeland Security (DHS) through the United States Citizenship and

Immigration Services (USCIS) means the Federal agency making the determination under the

INA on whether to grant visa petitions filed by employers seeking H-2A workers to perform

temporary agricultural work in the United States.

 (k) DOL means the United States DOL.

 (l) Eligible worker means, with respect to employment, an individual who is not an

unauthorized alien (as defined in Section 274a(h)(3) of the Immigration and Nationality Act, 8

U.S.C. 1324a(h)(3), or in this part) with respect to that employment.

 (m) Employ means to suffer or permit to work.

 (n) Employee means “employee” as defined under the general common law of agency. Some

of the factors relevant to the determination of employee status include: the hiring party’s right to




                                                 165
control the manner and means by which the work is accomplished; the skill required; the source

of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring

party’s discretion over when and how long to work; and whether the work is part of the regular

business of the hiring party. Other applicable factors should be considered and no one factor is

dispositive.

 (o) Employer means a person, firm, corporation or other association or organization (1) which

has a location within the United States to which U.S. workers may be referred for employment,

or qualifies as a farm labor contractor under this subpart and (2) which has an employer

relationship with respect to employees under this subpart as indicated by the fact that it may hire,

pay, fire, supervise or otherwise control the work of any such employee. Where two or more

employers each have the definitional indicia of employment with respect to an employee, those

employers shall be considered to jointly employ that employee. Farm labor contractors, for

purposes of this subpart, shall be considered to be employers. An employer must possess a valid

Federal Employer Identification Number (FEIN).

 (p) Employment Service (ES) refers to the system of Federal and state entities responsible for

administration of the labor certification process for temporary and seasonal agricultural

employment of nonimmigrant foreign workers. This includes the State Workforce Agencies

(SWAs) and the Office of Foreign Labor Certification (OFLC), including the National

Processing Centers (NPCs).

 (q) Employment Standards Administration (ESA) means the agency within the DOL (DOL)

that includes the Wage and Hour Division, and which is charged with carrying out certain

investigative and enforcement functions of the Secretary under the INA.




                                                166
 (r) Employment and Training Administration (ETA) means the agency within the DOL (DOL)

that includes the Office of Foreign Labor Certification (OFLC).

 (s) Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103.

 (t) Farm labor contracting activity means recruiting, soliciting, hiring, employing, furnishing, or

transporting any migrant or seasonal agricultural worker as those terms are used in 29 U.S.C.

1801 et seq. and 29 CFR part 500 with the intent to contract those workers to fixed-site

employers.

 (u) Farm labor contractor means any person – other than an agricultural association, or an

employee of an agricultural association – who, for any money or other valuable consideration

paid or promised to be paid, performs any farm labor contracting activity.

 (v) H–2A worker means any nonimmigrant admitted to the United States for agricultural labor

or services of a temporary or seasonal nature under section 101(a)(15)(H)(ii)(a) of the INA (8

U.S.C. 1101(a)(15)(H)(ii)(a)).

 (w) Job offer means the offer made by an employer or potential employer of H–2A workers to

eligible workers describing all the material terms and conditions of employment, including those

relating to wages, working conditions, and other benefits.

 (x) Job opportunity means a job opening for temporary, full-time employment at a place in the

United States to which U.S. workers can be referred.

 (y) Office of Foreign Labor Certification (OFLC) means the organizational component of the

Employment and Training Administration that provides national leadership and policy guidance

and develops regulations and procedures to carry out the responsibilities of the Secretary of

Labor under the Immigration and Nationality Act, as amended, concerning the admission of




                                                167
foreign workers to the United States in order to work under section 101(a)(15)(H)(ii)(a) of the

Immigration and Nationality Act, as amended.

 (z) Positive recruitment means the active participation of an employer or its authorized hiring

agent in recruiting and interviewing qualified and eligible individuals in the area where the

employer's establishment is located and any other area designated by the Secretary as a multistate

area of traditional or expected labor supply with respect to the area where the employer’s

establishment is located in an effort to fill specific job openings with U.S. workers.

 (aa) Prevailing means with respect to certain benefits other than wages provided by employers

and certain practices engaged in by employers, that practice or benefit which is most commonly

provided by employers (including H-2A and non H-2A employers) for the occupation in the area

of intended employment.

 (bb) Representative means the official employed by or authorized to act on behalf of the

employer with respect to activities entered into for and/or attestations made with respect to the

Application for Temporary Employment Certification. In the case of an attorney who acts as an

employer’s representative and who interviews and/or considers U.S. workers for the job offered

to the foreign worker(s), such individual must be the person who normally interviews or

considers, on behalf of the employer, applicants for job opportunities such as that offered in the

application, but which do not involve labor certifications.

 (cc) Secretary means the Secretary of Labor, the chief official of the U.S. DOL, or the

Secretary's designee.

 (dd) State Workforce Agency (SWA), formerly known as the State Employment Security

Agency (SESA), means the State government agency that receives funds pursuant to the

Wagner-Peyser Act to administer the public labor exchange delivered through the state’s one-




                                                168
stop delivery system in accordance with the Wagner-Peyser Act. 29 U.S.C. 49 et seq.

Separately, SWAs receive ETA grants, administered by the Office of Foreign Labor

Certification, to assist them in performing certain activities related to foreign labor certification –

including the conducting housing inspections.

 (ee) Temporary agricultural labor certification means the certification made by the Secretary of

Labor with respect to an employer seeking to file with DHS a visa petition to employ a foreign

national as an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 of

the INA that (1) there are not sufficient workers who are able, willing, and qualified, and who

will be available at the time and place needed, to perform the agricultural labor or services

involved in the petition, and (2) the employment of the foreign worker in such agricultural labor

or services will not adversely affect the wages and working conditions of workers in the United

States similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188).

 (ff) Temporary agricultural labor certification determination means the written determination

made by the OFLC Administrator to approve or deny, in whole or in part, an application for a

temporary agricultural labor certification to import a foreign worker(s).

 (gg) United States, when used in a geographic sense, means the continental United States,

Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam and the Virgin

Islands of the United States.

 (hh) United States worker means any worker who is:

 (1) A citizen or national of the United States, or;

 (2) An alien who is lawfully admitted for permanent residence in the United States, is admitted

as a refugee under § 207 of the INA, is granted asylum under § 208 of the INA, or is an

immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States.




                                                 169
 (ii) Wages means all forms of cash remuneration to a worker by an employer in payment for

personal services.

 (jj) Definition of agricultural labor or services of a temporary or seasonal nature. For the

purposes of this subpart, “agricultural labor or services of a temporary or seasonal nature” means

the following:

 (1) “Agricultural labor or services”. Pursuant to section 101(a)(15)(H)(ii)(a) of the INA (8

U.S.C. 1101(a)(15)(H)(ii)(a)), “agricultural labor or services” is defined for the purposes of this

subpart as:

 (i) “agricultural labor” as defined and applied in section 3121(g) of the Internal Revenue Code

of 1954 (26 U.S.C. 3121(g));

 (ii) “agriculture” as defined and applied in section 3(f) of the Fair Labor Standards Act of 1938

(29 U.S.C. 203(f));

 (iii)    the pressing of apples for cider on a farm;

 (iv)     logging employment; or

 (v)     in the employ of the operator of a farm in handling, planting, drying, packing, packaging,

processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for

transportation to market, in its unmanufactured state, any agricultural or horticultural commodity

while in the employ of the operator of a farm.

(vi)     other work typically performed on a farm that is incidental to the agricultural labor or

services for which the worker was sought.

 (2) An occupation included in either of the statutory definitions cited in paragraphs (jj)(1)(i)

and (ii) of this section shall be “agricultural labor or services”, notwithstanding the exclusion of




                                                 170
that occupation from the other statutory definition. For informational purposes, the statutory

provisions are quoted below:

 (i) “Agricultural labor”. Section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C.

3121(g)), quoted as follows, defines the term “agricultural labor” to include all service

performed:

         (1) On a farm, in the employ of any person, in connection with cultivating the soil, or in
       connection with raising or harvesting any agricultural or horticultural commodity,
       including the raising, shearing, feeding, caring for, training, and management of
       livestock, bees, poultry, and furbearing animals and wildlife;

        (2) Services performed in the employ of the owner or tenant or other operator of a farm,
       in connection with the operation, or maintenance of such farm and its tools and
       equipment, or in salvaging timber or clearing land of brush and other debris left by a
       hurricane, if the major part of such service is performed on a farm;

        (3) In connection with the production or harvesting of any commodity defined as an
       agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended
       (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the
       operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or
       operated for profit, used exclusively for supplying and storing water for farming
       purposes;

        (4)(A) In the employ of the operator of a farm in handling, planting, drying, packing,
       packaging, processing, freezing, grading, storing, or delivering to storage or to market or
       to a carrier for transportation to market, in its unmanufactured state, any agricultural or
       horticultural commodity; but only if such operator produced more than one-half of the
       commodity with respect to which such service is performed;

        (B) In the employ of a group of operators of farms (other than a cooperative
       organization) in the performance of service described in subparagraph (A), but only if
       such operators produced all of the commodity with respect to which such service is
       performed. For purposes of this subparagraph, any unincorporated group of operators
       shall be deemed a cooperative organization if the number of operators comprising such
       group is more than 20 at any time during the calendar quarter in which such service is
       performed;

        (C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable
       with respect to service performed in connection with commercial canning or commercial
       freezing or in connection with any agricultural or horticultural commodity after its
       delivery to a terminal market for distribution for consumption; or




                                                171
         (5) On a farm operated for profit if such service is not in the course of the employer's
       trade or business or is domestic service in a private home of the employer.

       As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-
       bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or
       other similar structures used primarily for the raising of agricultural or horticultural
       commodities, and orchards.

 (ii) “Agriculture”. Section 203(f) of title 29, United States Code (section 3(f) of the Fair Labor

Standards Act of 1938, as codified), quoted as follows, defines “agriculture” to include:

       (f) * * * farming in all its branches and among other things includes the cultivation and
       tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any
       agricultural or horticultural commodities (including commodities as defined as
       agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees,
       fur-bearing animals, or poultry, and any practices (including any forestry or lumbering
       operations) performed by a farmer or on a farm as an incident to or in conjunction with
       such farming operations, including preparation for market, delivery to storage or to
       market or to carriers for transportation to market.

 (iii) “Agricultural commodity”. Section 1141j(g) of title 12, United States Code, (section 15(g)

of the Agricultural Marketing Act, as amended), quoted as follows, defines “agricultural

commodity” to include:

       (g) * * * in addition to other agricultural commodities, crude gum (oleoresin) from a
       living tree, and the following products as processed by the original producer of the crude
       gum (oleoresin) from which derived: Gum spirits of turpentine, and gum rosin, as
       defined in section 92 of Title 7.

 (iv) “Gum rosin”. Section 92 of title 7, United States Code, quoted as follows, defines “gum

spirits of turpentine” and “gum rosin” as—

       (c) “Gum spirits of turpentine” means spirits of turpentine made from gum
       (oleoresin) from a living tree.

       *       *      *       *       *

       (h) “Gum rosin” means rosin remaining after the distillation of gum spirits of
       turpentine.

 (3) “Of a temporary or seasonal nature”




                                               172
 (i) “On a seasonal or other temporary basis”. For the purposes of this part, “of a temporary or

seasonal nature” means “on a seasonal or other temporary basis”, as defined in the Employment

Standards Administration's Wage and Hour Division's regulation at 29 CFR part 500.20 under

the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

 (ii) MSPA definition. “On a seasonal or other temporary basis” means:

*      *      *       *       *


       Labor is performed on a seasonal basis, where, ordinarily, the employment pertains to or
       is of the kind exclusively performed at certain seasons or periods of the year and which,
       from its nature, may not be continuous or carried on throughout the year. A worker who
       moves from one seasonal activity to another, while employed in agriculture or
       performing agricultural labor, is employed on a seasonal basis even though he may
       continue to be employed during a major portion of the year.

*      *      *       *       *


       A worker is employed on “other temporary basis” where he is employed for a limited
       time only or his performance is contemplated for a particular piece of work, usually of
       short duration. Generally, employment which is contemplated to continue indefinitely is
       not temporary.

*      *      *       *       *


       “On a seasonal or other temporary basis” does not include the employment of any
       foreman or other supervisory employee who is employed by a specific agricultural
       employer or agricultural association essentially on a year round basis.

*      *      *       *       *


       “On a seasonal or other temporary basis” does not include the employment of any worker
       who is living at his permanent place of residence, when that worker is employed by a
       specific agricultural employer or agricultural association on essentially a year round basis
       to perform a variety of tasks for his employer and is not primarily employed to do field
       work.




                                               173
 (iii)    “Temporary”. For the purposes of this part, the definition of “temporary” in paragraph

          (c)(2)(ii) of this section refers to any job opportunity covered by this part where the

          employer needs a worker for a position for a limited period of time, which shall be for

          less than one year, unless the original temporary agricultural labor certification is

          extended based on unforeseen circumstances, pursuant to § 20 CFR 655.110 subpart B.




         18. Section 501.15 is amended by revising the first and last sentences of the section to

read as follows:

§ 501.15 Enforcement.

 The investigation, inspections and law enforcement functions to carry out the provisions of

section 218 of the INA, as provided in these regulations for enforcement by the Wage and Hour

Division, pertain to the employment of any H-2A worker and any other U.S. worker hired in

corresponding employment by an H-2A employer.

 * * * The work contract enforced includes the employment benefits which must be stated in the

job offer, as prescribed in 20 CFR part 655, subpart B.




         19. Section 501.16 is amended by revising the section heading and paragraphs (a) and

(b) to read as follows:



§ 501.16 Sanctions and Remedies – General.




                                                 174
*      *       *       *       *

 (a) Impose denial of labor certification against any person for a violation of the H-2A

obligations of the INA or the regulations. ETA shall make all determinations regarding the

issuance or denial of a labor certification in connection with the attestation process. The Wage

and Hour Division shall make all determinations regarding the enforcement functions listed in

paragraphs (b) through (d) of this section.

 (b) Institute appropriate administrative proceedings, including the recovery of unpaid wages

(whether directly from the employer, or in the case of an FLC by claim against any surety who

issued a bond to the farm labor contractor), the enforcement of any other contractual obligations,

the assessment of a civil money penalty or denial of future certification(s) for up to three years

against any person for a violation of the H-2A work contract obligations of the Act or these

regulations. In the event of a denial of future certification, notice is provided to OFLC.

*      *       *       *       *




       20. Section 501.19 is amended by revising paragraph (c) to read as follows:

§ 501.19 Civil money penalty assessment.

*      *       *       *       *

 (c) A civil money penalty for violation of the work contract will not exceed $1,000 for each

violation committed against each worker, with the following exceptions:

 (1) For a willful failure to meet a condition of the work contract, or for discrimination, the civil

money penalty shall not exceed $5,000 for each worker affected by the violation;




                                                175
 (2) For a violation of a housing or transportation safety and health provision of the work

contract that causes the death or serious injury of any worker, the civil money penalty shall not

exceed $50,000 per worker, unless the violation is a repeated or willful violation, in which case

the penalty shall not exceed $100,000 per worker.

 (3) For purposes of paragraph (c)(3) of this section, the term “serious injury” means:

 (i) permanent loss or substantial impairment of one of the senses (sight, hearing, taste,

smell, tactile sensation);

 (ii) permanent loss or substantial impairment of the function of a bodily member, organ, or

mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or

 (iii) permanent paralysis or substantial impairment that causes loss of movement or mobility of

an arm, leg, foot, hand or other body part.

(d) A civil money penalty for interference with a Wage and Hour Division investigation shall not

exceed $5,000 per investigation;

 (e) For a willful layoff or displacement of any similarly employed U.S. worker in the

occupation that is the subject of the Application for Temporary Employment Certification in the

area of intended employment within the period beginning 75 days before the date of need, except

that such layoff shall be permitted where the employer also attests that it offered the opportunity

to the laid-off U.S. worker(s) and said U.S. worker(s) either refused the job opportunity or were

rejected for the job opportunity for lawful, job-related reasons, the civil penalty shall not exceed

$15,000 per violation per worker.



        21. Section 501.20 is revised to read as follows:

§ 501.20 Debarment.




                                                 176
 (a) As a result of the Wage and Hour Division’s authority to conduct investigations,

inspections, and law enforcement functions to carry out the provisions of section 218 of the INA,

if the Wage and Hour Division determines that an employer has substantially violated a material

term or condition of a work contract, the Wage and Hour Division Administrator may debar the

employer from future labor certifications for a period of up to three years from the date of the

determination.

 (b) For the purposes of this section, a substantial violation includes but is not limited to:

 (i) violations that through investigation by the Wage and Hour Division were determined to be

significantly injurious to the wages, benefits, or working conditions of 10 percent or more of the

employer’s workforce of H-2A and U.S. workers hired in corresponding employment ; (ii)

reflect a failure to comply with one or more penalties imposed by the Employment Standards

Administration Wage and Hour Division for violation(s) of contractual obligations, or with one

or more decisions or orders of the Secretary or a court pursuant to § 218 of the INA (8 U.S.C.

1188), 20 CFR part 655, subpart B, or 29 CFR part 501; or

 (iii) employment of an H-2A worker outside the area of intended employment, or in an activity

not listed in the job order, or after the expiration of the job order and any approved extension.

 (c) The Notice of Debarment shall be in writing, shall state the reason for the debarment

finding, including a detailed explanation of the grounds for and the duration of the debarment,

and shall identify appeal opportunities under 29 CFR part 501.33. The debarment shall take

effect on the start date identified in the Notice of Debarment, unless a timely request for review

is filed. The timely filing of an administrative appeal stays the debarment pending the outcome

of the appeal proceedings.




                                                 177
 (d) Debarment involving members of associations. If after investigation, the Wage and Hour

Division determines a substantial violation has occurred, and if an individual producer member

of a joint employer association is determined to have committed the violation, the determination

to debar the employer from future labor certifications for a period of up to three years from the

date of the determination shall apply only to that member of the association unless the Wage and

Hour Division Administrator determines that the association or other association member

participated in, had knowledge of, or had reason to know of the violation, in which case the

debarment shall be invoked against the complicit association or other association members as

well.

 (e) Debarment involving associations acting as joint employers. If after investigation, the Wage

and Hour Division determines a substantial violation has occurred, and if an association acting as

a joint employer with its members is determined to have committed the violation, the

determination to debar the association from future labor certifications for a period of up to three

years from the date of the determination shall apply only to the association, and shall not be

applied to any individual producer member of the association unless the Wage and Hour

Division Administrator determines that the member participated in, had knowledge of, or reason

to know of the violation, in which case the debarment shall be invoked against the complicit

association member as well.

 (f) Debarment involving associations acting as sole employers. If after investigation, the Wage

and Hour Division determines a substantial violation has occurred, and if an association acting as

a sole employer is determined to have committed the violation, the determination to deny future

labor certifications under this part for a period of up to three years from the date of the




                                                 178
determination shall apply only to the association and any successor in interest to the debarred

association.



       22. Section 501.21 is revised to read as follows:

§ 501.21 Referral to ETA of interference with or refusal to permit investigation.

 Sections 501.5 through 501.7 of this part describe the investigation authority conferred by the

Secretary upon the Wage and Hour Division for the purpose of enforcing the contractual

obligations relating to wages, benefits, and working conditions of employers of H-2A workers

and U.S. workers hired in corresponding employment. The following sections describe the

actions which may be taken by the Wage and Hour Division when an employer fails to cooperate

with an investigation concerning the employment of H-2A workers or U.S. workers hired in

corresponding employment. The Wage and Hour Division shall report such occurrence to ETA

and may recommend revocation of an existing labor certification. No person shall interfere with

any employee of the Secretary who is exercising or attempting to exercise this investigative or

enforcement authority. As stated in §§ 501.5, 501.6 and 501.19 of this part, a civil money

penalty may be assessed for each failure to permit an investigation or interference therewith, and

other appropriate relief may be sought. In addition, the Wage and Hour Division shall report

each such occurrence to ETA, and the Wage and Hour Division may debar the employer from

future certification and recommend to ETA revocation of existing certification. The taking of

any one action shall not bar the taking of any additional action.



       23. Section 501.30 is revised to read as follows:




                                                179
§ 501.30 Applicability of procedures and rules.

 The procedures and rules contained herein prescribe the administrative process that will be

applied with respect to a determination to impose an assessment of civil money penalties or

debarment, and which may be applied to the enforcement of contractual obligations, including

the collection of unpaid wages due as a result of any violation of the H-2A provisions of the Act

or of these regulations. Except with respect to the imposition of civil money penalties or

debarment, the Secretary may, in the Secretary’s discretion, seek enforcement action in Federal

court without resort to any administrative proceedings.



          24. Section 501.31 is revised to read as follows:

§ 501.31 Written notice of determination required.

    Whenever the Administrator determines to assess a civil money penalty, to debar, or to proceed

administratively to enforce contractual obligations, including the recovery of unpaid wages, the

person against whom such action is taken shall be notified in writing of such determination.



          25. Section 501.32 is amended by revising paragraph (a) to read as follows:

§ 501.32 Contents of notice.

*         *      *       *      *

    (a) Set forth the determination of the Administrator including the amount of any unpaid wages

due or contractual obligations required, the amount of any civil money penalty assessment,

whether to debar and the length of the debarment, and the reason or reasons therefor.

*         *      *       *      *




                                                 180
       26. .Section 501.33 is amended by revising paragraphs (a) and (d) to read as follows:

§ 501.33 Request for hearing.

 (a) Any person desiring review of a determination referred to in § 501.32, including judicial

review, shall make a written request for an administrative hearing to the official who issued the

determination at the Wage and Hour Division address appearing on the determination notice, no

later than thirty (30) days after issuance of the notice referred to in § 501.32.

 (b) * * *

 (c) * * *

 (d) The determination shall take effect on the start date identified in the determination, unless

an administrative appeal request for review is properly filed. The timely filing of an

administrative appeal stays the determination pending the outcome of the appeal proceedings.



       27. Section 501.42 is amended by revising paragraph (a) to read as follows:

§ 501.42 Procedures for initiating and undertaking review.



 (a) A respondent, the Administrator, or any other party wishing review, including judicial

review, of the decision of an administrative law judge shall, within 30 days of the decision of the

administrative law judge, petition the Administrative Review Board (ARB) to review the

decision. Copies of the petition shall be served on all parties and on the administrative law

judge. If the ARB does not issue a notice accepting a petition for review within 30 days after

receipt of a timely filing of the petition, or within 30 days of the date of the decision if no

petition has been received, the decision of the administrative law judge shall be deemed the final

agency action. If a petition for review is filed, the decision of the administrative law judge shall




                                                 181
be inoperative unless and until the ARB issues an order affirming the decision, or declining

review.

*         *      *       *      *



          28. In Sections 501.22, and 501.41-.45 all references to “Secretary” are revised to read

“Administrative Review Board”.



          29.    Part 780 of Title 29, Code of Federal Regulations, is proposed to be amended as

follows:



PART 780— EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR
LABOR STANDARDS ACT


*         *      *       *      *

          Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-219

          30.    Amend the Table of Contents of Part 780 to read as follows:


Table of Contents

*         *      *       *      *
780.205 Nursery activities generally and Christmas tree production.

*         *      *       *      *

780.208 Forestry activities.



          31.    Section 780.115 is amended to read as follows:

§ 780.115 Forest products.


                                                 182
 Trees grown in forests and the lumber derived therefrom are not ”agricultural or horticultural

commodities,” for the purpose of the FLSA (See § 780.205 regarding production of Christmas

trees ) It follows that employment in the production, cultivation, growing, and harvesting of such

trees or timber products is not sufficient to bring an employee within section 3(f) unless the

operation is performed by a farmer or on a farm as an incident to or in conjunction with his or its

farming operations. On the latter point, see §§ 780.160 through 780.164 which discuss the

question of when forestry or lumbering operations are incident to or in conjunction with farming

operations so as to constitute ‘‘agriculture.’’ For a discussion of the exemption in section

13(b)(28) of the Act for certain forestry and logging operations in which not more than eight

employees are employed, see part 788 of this chapter


       32.     Section 780.201 is amended to read as follows:

§ 780.201 Meaning of ‘‘forestry or lumbering operations.’’

   The term ‘‘forestry or lumbering operations’’ refers to the cultivation and management of

forests, the felling and trimming of timber, the cutting, hauling, and transportation of timber,

logs, pulpwood, cordwood, lumber, and like products, the sawing of logs into lumber or the

conversion of logs into ties, posts, and similar products, and similar operations. It also includes

the piling, stacking, and storing of all such products. The gathering of wild plants and of wild

Christmas trees is included. (See the related discussion in §§ 780.205 through 780.209 and in

part 788 of this chapter which considers the section 13(b)(28) exemption for forestry or logging

operations in which not more than eight employees are employed.) ‘‘Wood working’’ as such is

not included in ‘‘forestry’’ or ‘‘lumbering’’ operations. The manufacture of charcoal under




                                                183
modern methods is neither a ‘‘forestry’’ nor ‘‘lumbering’’ operation and cannot be regarded as

‘‘agriculture.’’

        33.        Section 780.205 is amended as follows:


§ 780.205 Nursery activities generally and Christmas tree production.

 (a)    The employees of a nursery who are engaged in the following activities are employed in

‘‘agriculture’’:

        (1) Sowing seeds and otherwise propagating fruit, nut, shade, vegetable, and ornamental

plants or trees, and shrubs, vines, and flowers;

        (2) Handling such plants from propagating frames to the field;

      (3) Planting, cultivating, watering, spraying, fertilizing, pruning, bracing, and feeding the
growing crop.


(b)     Trees produced through the application of extensive agricultural or horticulture

techniques to be harvested and sold for seasonal ornamental use as Christmas trees are

considered to be agricultural or horticultural commodities. Employees engaged in the

application of agricultural and horticultural techniques to produce Christmas trees as ornamental

horticultural commodities such as the following are employed in “agriculture’:

 (1) planting seedlings in a nursery; on-going treatment with fertilizer, herbicides, and pesticides

as necessary;

 (2) after approximately three years, re-planting in lineout beds;

 (3) after two more seasons, lifting and re-planting the small trees in cultivated soil with

continued treatment with fertilizers, herbicides, and pesticides as indicated by testing to see if

such applications are necessary;

 (4) pruning or shearing yearly;


                                                   184
 (5) harvesting of the tree for seasonal ornamental use, typically within seven to ten years of

planting.

Trees to be used as Christmas trees which are gathered in the wild such as from forests or

uncultivated land and not produced through the application of agricultural or horticultural

techniques are not agricultural or horticultural commodities for purposes of section 3(f) (See

USDOL v North Carolina Growers Association, Inc. et. al., 377 F.3d 345).



         34.     Section 780.208 is amended to read as follows:

§ 780.208 Forestry activities.

    Operations in a forest tree nursery such as seeding new beds and growing and transplanting

forest seedlings are not farming operations. For such operations to fall within section 3(f), they

must qualify under the second part of the definition dealing with incidental practices. (See §

780.201.)

*        *       *      *        *

         35.     Part 788 is amended to read as follows:

PART 788-FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN
EIGHT EMPLOYEES ARE EMPLOYED


         36.     Section 788.10 is amended to read as follows:

Sec. 788.10 “Preparing * * * other forestry products.”

    As used in the exemption, “other forestry products” mean plants of the forest and the natural

properties or substances of such plants and trees. Included among these are decorative greens

such as holly, ferns, roots, stems, leaves, Spanish moss, wild fruit, and brush. Christmas trees are

only included where they are gathered in the wild from forests or from uncultivated land and not


                                                185
produced through the application of extensive agricultural or horticultural techniques. (See 29

CFR § 780.205 for further discussion.) Gathering and preparing such forestry products as well

as transporting them to the mill, processing plant, railroad, or other transportation terminal are

among the described operations. Preparing such forestry products does not include operations

that change the natural physical or chemical condition of the products or that amount to

extracting (as distinguished from gathering) such as shelling nuts, or that mash berries to obtain

juices.




          Signed in Washington, DC, this_______day of ______________, 2008.



          _______________________________________

          Douglas F. Small,

          Deputy Assistant Secretary, Employment and Training Administration.



          ________________________________________

          Alexander Passantino,

          Acting Administrator, Wage and Hour Division, Employment Standards Administration




                                         Billing Code 4510-FP-P




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